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Full text of "Report of the Commission on Systemic Racism in the Ontario Criminal Justice System."

Digitized by tine Internet Arciiive 

in 2010 witii funding from 

Tine Law Foundation of Ontario & tine Ontario Council of University Libraries 



http://www.archive.org/details/reportracismontOOcomm 



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Report of 

the Commission on Systemic Racism 

in the Ontario Criminal justice System 



December 1995 




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Commission on Systemic Racism in the Ontario Criminal Justice System 

Commissioners: Margaret Gittens (Co-Chair), David Cole(Co-Chair), Toni Williams, 
Sri-Guggan Sri-Skanda-Rajah, Moy Tarn, Ed Ratusliny. 



® Queen's Printer for Ontario, 1995 

Ce document est aussi disponible en fran(jais 



ISBN 0-7778-4718-3 



Editor: Eric Mills 

Cover Design: M.A. Korsik 




Ontarto 



COMMISSION ON SYSTEMIC 
RACISM IN THE ONTARIO 
CRIMINAL JUSTICE SYSTEM 



December 19, 1995 



COMMISSION SUR LE RACISME 
SYSTEMIQUE DANS LE SYSTEME 
DE JUSTICE PENALE EN ONTARIO 



Margaret Gittens 

Co-Chair 

Copresidente 



David Cole 

Co-Chair 

Copr^sident 

Commissioners 
Commissaires 

• Toni Williams 

• Moy Tam 

• Ed Ratushny 

• Sri-Guggan 

Sri-Skanda-Rajah 



The Honourable H.N.R. Jackman 

Lieutenant Governor of Ontario 

Suite 131 

Main Legislative Building 

Queen's Park 

M7A lAl 

Your Excellency: 

Pursuant to our appointment by Order in Council 2909/92 dated October 1992, we are 
pleased to submit to you our Final Report on Systemic Racism in the Ontario Criminal 
Justice System. 

The Commission appreciates the time, energy and hard work contributed by hundreds of 
people across the province, as well as the contribution of people nationally and 
internationally. 



Yours ve 




DiwidjP. Cole 
Co-Chair 




C/l^ 




0^t^^\ 



Moy Tam 
Commissioner 




Ed Ratushny 
Commissioner 




Margaret Gittens 
Co-Chair 



Toni Williams 
Conmiissioner 




Sri^Gn^gan Sri-Skanda-Rajah 
Commissioner 



180 Dundas St. W., 22nd floor, Toronto ON 
Tel.; (416) 327-6800 Fax: (416) 327-6798 



M5G 1Z8 



Toll free: 1-800-463-8803 



(K 



180, rue Dundas ouest, 22' etage, Toronto ON 
Tel.: (416) 327-6800 T6\ec. : (416) 327-6798 

Sans frais: 1-800-463-8803 



M5G 1Z8 



® 



Acknowledgements 



The final report of the Commission reflects the contributions of hundreds of people 
across the Province of Ontario. Our work was invaluably enhanced by the 
contributions of formal presenters, participants in focus groups and other community 
meetings, and many others who took the time to write or telephone the Commission 
throughout the life of our mandate. We also express our appreciation for the formal 
and informal co-operation we received from officials in several government 
ministries and other organizations, including the police and judiciary. We are 
grateful for the assistance of academics and consultants who showed keen interest in 
our work, and willingly offered advice and numerous suggestions. 

We wish to acknowledge and thank all our staff for their dedication and 
commitment, often against the backdrop of extremely limited time frames. 
Commissioner Toni Williams deserves tremendous credit for agreeing to accept the 
task of writing the Report. Her insight, analysis and creative conceptualization of 
this multifaceted mandate deserves recognition. We must also recognize the 
invaluable contribution of our Executive Coordinator, Valerie Holder, who in a quiet 
unassuming way capably managed multiple assignments, solved technical problems, 
kept track of research papers and documents and mastered new challenges as they 
arose, all in good humour. 

We express thanks to the youth, women and men behind bars who spoke to us in 
less than elegant circumstances and shared their experiences, knowledge, insight and 
suggestions with us. We thank the superintendents, correctional officers and staff of 
federal and provincial penal institutions for their co-operation during visits to these 
facilities and to other requests that we made. 

Our work was enhanced by the contributions of individuals, activists and people 
from diverse communities and we thank them. We also express our appreciation for 
the co-operation we received from the Ministers and staff of the three related 
Ministries of Attorney General, Solicitor General and Corrections, and Community 
and Social Services. We also acknowledge the contributions of Chiefs of police and 
members of Police Associations. 

Finally, to all those who related their experiences time and time again because they 
had a hope and vision of a more just and equal society, we hope this report begins 
that process of change. 



Contents 

Executive Summary ' 

Chapter 1 Introduction 1 

Chapter 2 Racism in Justice: Perceptions H 

Perceptions of racial inequality 12 

Metro Toronto residents' perceptions 13 

What Metro Toronto residents think about 

judges 14 

Summary of the Metro Toronto residents survey . 1 7 

Judges' and lawyers' perceptions 18 

What crown attorneys think 19 

What defence counsel think 24 

What judges think 29 

Summary of judges' and lawyers' perceptions ... 34 

Conclusion 35 

Chapter 3 Racism in Justice: Understanding Systemic Racism 40 

Racialization: the driving force of racial 

inequality 39 

Signs of racial difference 41 

Meanings of racial difference 42 

How racialization produces racial inequality 45 

How people instill racialization into systems 46 

How decision-making inserts 

racialization into systems 50 

Inherent bias in standards 50 

Transmitted bias in decision-making 51 

How service delivery may support 

racialization 52 

Operating norms and racialization 54 

Passive toleration 54 

Disregard 55 

Collusive toleration 55 

Systemic racism: summary of the process 

definition 56 

Recognizing and eliminating systemic racism 56 

Conclusion 59 



Chapter 4 Prison Admissions 65 

Introduction 66 

Findings about racial inequality in prison 

admissions 67 

A note of caution 67 

Summary of findings 69 

Prison admissions over time: The growth of racial 

inequality 70 

Trends in admissions of black and white men ... 71 
Trends in admissions of black 

and white women 75 

Trends in black and white admissions on drug 

trafficking/importing charges 78 

Comment on the growth of 
racial inequality in 

. admissions 81 

Prison admissions in 1992/93: The 

details of racial inequality 84 

Youth admissions 84 

Youth admissions by sex and race 84 

Youth admissions by reason for 

admission and race 85 

Adult admission totals: an 

overview 87 

Adult admissions by sex and race 87 

Adult admissions by 
reason for 
admission and 

race 87 

Adult admission rates: A more precise measure . . 88 

Admission rates by race 89 

Admission rates by race and sex 89 

Admission rates before 

and after trial 90 

Admission rates by specific charges 90 

Other variables 92 

Comment on the findings 95 

Understanding over-representation 95 

Social and economic inequality 98 

Differential enforcement 99 

Decisions that produce imprisonment: 

an overview 101 

Entry into the criminal justice process 101 

Police discretion to charge 101 

Imprisonment before trial 102 

Processing charges 103 

Court resolutions 103 

Conclusion 104 



Chapter 5 Imprisonment Before Trial 113 

Regulating imprisonment before trial 115 

Reasons for limiting pre-trial 

imprisonment 115 

Principles for limiting pre-trial 

imprisonment 116 

Legal justifications for imprisonment 

before trial 117 

Racial inequality in the use of pre-trial 

imprisonment: findings 119 

Lawyers' perceptions of racial bias 119 

Introduction to the major study 120 

Basic finding: racial inequality in bail 

decisions 123 

Nature of the charge: the special case of 

drugs 126 

Prior contact with the criminal justice 

system 128 

Criminal record 128 

Aspects not disclosing 
significant 

differences 128 

Existence and length of criminal record . . 129 

Currency of record 134 

Offence "track record" 135 

Previous prison sentence 137 

Bail status at the time of charge 137 

Serving sentence in the 

community 137 

Ties to the community 139 

Employment status 139 

Fixed address 140 

Single status 141 

Discrimination in detention decisions: 

the overall picture 142 

Summary of findings 143 

Moving forward: analysis and recommendations 146 

Arrest and police detention 147 

Conditional release by the police 149 

"Show cause" reports 151 

Preparation for bail hearings 153 

Judicial detention 155 

Bail rules: the reverse onus exceptions 155 

Crown counsel discretion 158 

Undue emphasis on immigration status 159 

Undue emphasis on other "ties 

to the community" 160 

Leadership in preventing unfair detention 162 

Refugee claimants and the 



reverse onus presumption 162 

Unattainable bails 163 

Conduct restrictions 164 

Bail variation procedures 166 

Bail justices' discretion 167 

Objective indicators of risk 168 

Bail supervision programs 169 

Access to interpreters 172 

Representation at bail hearings 173 

Chapter 6 Charge Management 179 

Selecting and processing charges 181 

Police discretion to lay charges 182 

Findings about police charging 

discretion 182 

Crown attorney discretion to review 

charges 189 

Findings about the review of charges. 190 

Discretion to avoid court proceedings 193 

Accused persons' access to legal services 195 

Access to emergency legal services 196 

Access to basic legal advice 198 

Access to legal representation 200 

Pre-trial resolution - plea bargaining 204 

Negotiating on a level playing field: full 

disclosure 206 

Attendance at pre-trial conferences 207 

Plea comprehension inquiries 209 

Victims and charge management 211 

Mandatory charging 211 

Justice services for victims and 

witnesses 212 

Chapter 7 Court Dynamics 221 

Uses of foreignness in Ontario criminal courts 224 

Basic findings about references to 

foreignness 224 

Explanations of references to 

foreignness 227 

"Bad apple" cases 227 

"Hidden agenda" cases 234 

"Apparently benign" uses of foreignness 238 

Experiences of exclusion 239 

Court proceedings 239 

Interpreter services 243 

Competence 244 

Impartiality 246 

Accountability for mistakes 246 

Criminal justice personnel and effective 



interpretation 247 

The image of white justice 249 

Under-representation of racialized persons 

among judges and lawyers 249 

Under-representation of 

racialized persons on 

juries 250 

Citizenship qualification 251 

Sources for the jury pool 252 

Challenges to equality: oaths and affirmations 253 

Chapter 8 Imprisonment After Conviction 261 

Overview of sentencing 263 

Sentencing outcomes: our major study 265 

Introduction and scope 265 

Differential imprisonment rates 266 

Seriousness of offences 266 

Seriousness of offence type 268 

Specific charges: the sub- 
sample 269 

Characteristics of the criminal incident . . . 269 

Summary 270 

Criminal history 270 

Number of previous 

convictions 271 

Previous prison terms 271 

Clean time 272 

Criminal justice supervision 273 

Criminal justice variables 274 

The plea 274 

Crown election 274 

Imprisonment before trial 275 

Social factors 275 

Direct and indirect racial discrimination 277 

Disparity in prison terms 278 

Differential imprisonment: conclusions 280 

Recommendations 281 

Judicial discretion at sentencing 282 

Guideline judgments 282 

Credit for pre-sentence custody 283 

References to deportation 284 

Judicial education 285 

Crown attorney discretion at sentencing 287 

Pre-sentence and pre-disposition reports 289 

A broader view 291 

Chapter 9 Racism Behind Bars Revisited 299 

The context of prison discipline and control 300 

Law and policy 300 



reverse onus presumption 162 

Unattainable bails 163 

Conduct restrictions 164 

Bail variation procedures 166 

Bail justices' discretion 167 

Objective indicators of risk 168 

Bail supervision programs 169 

Access to interpreters 172 

Representation at bail hearings 173 

Chapter 6 Charge Management 179 

Selecting and processing charges 181 

Police discretion to lay charges 182 

Findings about police charging 

discretion 182 

Crown attorney discretion to review 

charges 189 

Findings about the review of charges. 190 

Discretion to avoid court proceedings 193 

Accused persons' access to legal services 195 

Access to emergency legal services 196 

Access to basic legal advice 198 

Access to legal representation 200 

Pre-trial resolution - plea bargaining 204 

Negotiating on a level playing field: full 

disclosure 206 

Attendance at pre-trial conferences 207 

Plea comprehension inquiries 209 

Victims and charge management 211 

Mandatory charging 211 

Justice services for victims and 

witnesses 212 

Chapter 7 Court Dynamics 221 

Uses of foreignness in Ontario criminal courts 224 

Basic findings about references to 

foreignness 224 

Explanations of references to 

foreignness 227 

"Bad apple" cases 227 

"Hidden agenda" cases 234 

"Apparently benign" uses of foreignness 238 

Experiences of exclusion 239 

Court proceedings 239 

Interpreter services 243 

Competence 244 

Impartiality 246 

Accountability for mistakes 246 

Criminal justice personnel and effective 



interpretation 247 

The image of white justice 249 

Under-representation of raciaHzed persons 

among judges and lawyers 249 

Under-representation of 

raciaHzed persons on 

juries 250 

Citizenship quahfication 251 

Sources for the jury pool 252 

Challenges to equality: oaths and affirmations 253 

Chapter 8 Imprisonment After Conviction 261 

Overview of sentencing 263 

Sentencing outcomes: our major study 265 

Introduction and scope 265 

Differential imprisonment rates 266 

Seriousness of offences 266 

Seriousness of offence type 268 

Specific charges: the sub- 
sample 269 

Characteristics of the criminal incident . . . 269 

Summary 270 

Criminal history 270 

Number of previous 

convictions 271 

Previous prison terms 271 

Clean time 272 

Criminal justice supervision 273 

Criminal justice variables 274 

The plea 274 

Crown election 274 

Imprisonment before trial 275 

Social factors 275 

Direct and indirect racial discrimination 277 

Disparity in prison terms 278 

Differential imprisonment: conclusions 280 

Recommendations 281 

Judicial discretion at sentencing 282 

Guideline judgments 282 

Credit for pre-sentence custody 283 

References to deportation 284 

Judicial education 285 

Crown attorney discretion at sentencing 287 

Pre-sentence and pre-disposition reports 289 

A broader view 291 

Chapter 9 Racism Behind Bars Revisited 299 

The context of prison discipline and control 300 

Law and policy 300 



Institutional context 302 

Prison discipline: misconduct 303 

Enforcing the rules 305 

Reporting discretion 306 

Processing misconduct reports 308 

Superintendent's interview 309 

Punishments 310 

Conclusion 311 

Misconducts in practice: differential 

enforcement 311 

Policing discretion 312 

Penalty discretion 313 

Conclusion 314 

Use of force by prison staff 314 

Discretionary release from prison 316 

Temporary absence program 316 

Linguistic barriers 317 

Inconsistent procedures 318 

Case management and access 319 

Parole 322 

Preparation for parole 323 

Parole hearings 324 

Public accountability 326 

Anti-Racism Co-ordinator 326 

Community advisory committees 327 

Correctional legal clinic 329 

Chapter 10 Community Policing 335 

Perceptions of inequality in policing 339 

Findings 339 

Integrating racial equality into policing services 341 

Accounting to the community 343 

Racial inequality in police stops 349 

Frequency of reported stops 352 

Perceived fairness of police stops 356 

Implications of findings 357 

Community policing and school discipline 360 

Community policing and mall security 365 

Chapter 11 Systemic Responses to Police Shootings 377 

Investigation and charges 379 

The criminal trial 384 

Coroners' inquests 387 

Chapter 12 An equality strategy for justice 391 

Working for justice 391 

Anti-racism training 392 

Equality in employment and 

appointments 396 



Representation 396 

Equality in workplaces 399 

Participation in policy-making 401 

Monitoring outcomes 403 

Chapter 13 Looking Forward 409 

Recommendations 415 

Chapter 5 Imprisonment Before Trial 415 

Chapter 6 Charge Management 420 

Chapter 7 Court Dynamics 423 

Chapter 8 Imprisonment After Conviction 425 

Chapter 9 Racism Behind Bars Revisited 427 

Chapter 10 Community Policing 428 

Chapter 1 1 Systemic Responses to Police 

Shootings 431 

Chapter 12 An equality strategy for justice 432 

Appendix A Terms of Reference 435 

Appendix B Background Papers 437 

Appendix C Consultations and Public Forums 439 

Appendix D Submissions 443 



Executive Summary 



The Commission was established in 1992 to inquire into and make recommendations 
about the extent to which criminal justice practices, procedures and policies in 
Ontario reflect systemic racism. As directed by our Tenns of Reference, "anti-black 
racism" was a focal point of the Commission's inquiry, and the experiences and 
vulnerabilities of all racial minority communities were also recognized. 

The inquiry examined practices, procedures and policies in the three major 
components of the criminal justice system: the police, courts and correctional 
institutions. Professionals involved in the administration of justice and members of 
the public were consulted extensively by such means as interviews, public meetings, 
focus group sessions, written and oral submissions, and public hearings across the 
province. The Commission also conducted empirical studies of perceptions, 
experiences with and outcomes of the criminal justice process. 

Racism In Justice: Perceptions 

Many Ontarians believe that racial minority people are treated worse than white 
people in the criminal justice system. A major survey conducted in Metropolitan 
Toronto found that more than five in ten (58%) black residents, three in ten (31%) 
Chinese residents and more than three in ten (36%) white residents believe judges 
do not treat black people the same as white people. More than eight in ten of those 
who perceive differential treatment believe judges treat black people worse than 
white people. 

Perceptions that judges discriminate against Chinese people were less common but 
still significant. Four in ten (40%) black residents, close to three in ten (27%) 
Chinese residents and about two in ten (18%) white residents believe judges do not 
treat Chinese people the same as white people. Eight in ten of those who perceive 
differential treatment believe judges treat Chinese people worse than white people. 

Surveys of judges and lawyers indicate substantial variation in views about racial 
discrimination in the criminal justice system. While many judges and lawyers reject 
- some flatly - even the possibility that systemic racism might be a genuine 
problem in Ontario's criminal courts, others acknowledge differential treatment 
within the system based on race as well as class or poverty. Four in ten (40%) 
defence counsel and three in ten (33%) provincial division judges appointed since 
1989 perceive differential treatment of white and racial minority people in the 



ii Executive Summary 

criminal justice system. About one in ten crown attorneys (13%), general division 
judges (10%) and provincial division judges appointed before 1989 (10%)) also 
perceive unequal treatment by race. 

Racism In Justice: Understanding Systemic Racism 

Racism has a long history in Canada. It was fundamental to relationships between 
Canada's First Nations and the European colonizers. Racism has shaped immigration 
to this country and settlement within it. It has led to denials of basic civil and 
political rights to Canadian citizens, excluded adults from jobs and children from 
schools, limited opportunities to acquire property, and barred people from hotels, 
bars, theatres and other recreational facilities. In these ways racism has restricted the 
opportunities and deformed the lives of some Canadian residents, while directly 
benefiting others. 

Though many Canadians throughout history have accepted racism, others have 
campaigned and protested against the fundamental denial of humanity that it 
represents. These efforts have had significant results. While the law once permitted 
or promoted unequal treatment because of race, today it generally prohibits such 
discrimination. Equality is now a fundamental right. 

Despite these formal changes, racism continues in practices that affect the lives and 
opportunities of people in Ontario. The current challenge is to grapple with this 
systemic dimension of racism. 

Systemic racism means the social processes that produce racial inequality in 
decisions about people and in the treatment they receive. It is revealed by specific 
consequences, incidents and acts that indicate differential decisions or unequal 
treatment, but it is the underlying processes that make such events "systemic." One 
key process is racialization, the other is the social system. 

Racialization in Canada consists of classifications of people into racial groups by 
reference to signs of origin - such as skin colour, hair texture and place of birth - 
and judgments based on these signs about their character, skills, talents and capacity 
to belong in this country. These social constructions of races as different and 
unequal have historically justified economic exploitation of other societies by 
European imperial powers. Imperial elites organized societies they colonized using 
racialized classifications and judgments, which they incorporated into the religious, 
educational, cultural and political practices of their own societies. 

Once accepted by a society, judgments about races being different and unequal may 
be adopted, established and perpetuated by social systems. Social systems are ways 
of organizing action in order to accomplish tasks. They are made up of personnel 
and policies, decision-making procedures and operating norms for managing their 
work. Racialization is introduced into social systems through the decisions and 
actions of system personnel. However, it is often impossible to identify those 
responsible for introducing or perpetuating racialization because its transmission and 



Executive Summary iii 

acceptance are often cumulative and diffuse. Racialization within a system has an 
adverse impact upon racial ized persons, but may pass unrecognized by those who do 
not experience its effects. 

Racialization may be tolerated by the policies, procedures and norms of a system. It 
may be transmitted within particular systems or among different systems. These 
processes of introducing, perpetuating, tolerating and transmitting racialization 
within social systems constitute systemic racism. 

Prison Admissions 

Isolating people from society and confining them in prisons is the harshest action 
that the Canadian criminal justice system can take. The principle that everyone is 
equally protected against unfair or unjust imprisonment and the principle of restraint 
are fundamental to the state's authority to take this action. But practices do not 
always live up to principles when officials are granted broad discretion. 

A major study of admissions to Ontario prisons indicates that for the period studied, 
the majority of prisoners are white, but that black men, women, and male youths are 
massively over-represented. Aboriginal men, women and youths are also over- 
represented in provincial prisons, but not to the same extent as black people. 
Members of other racialized groups are generally not over-represented. 

The over-representation of black people reflects a dramatic increase in their 
admissions to prison between 1986/87 and 1992/93. By the end of these six years, 
black adults were admitted to prison at over five times the rate of white adults, 
proportionate to their representation in Ontario's population. 

Although many more black men than black women are in jail, black women are 
more over-represented among prison admissions than black men. Whereas black 
men were admitted to prison at a rate just over five times that of white men in 
1992/93, the admission rate for black women was almost seven times that of white 
women. 

The over-representation of black adults is much worse among those imprisoned 
before trial than among sentenced admissions. While white people were imprisoned 
before trial at about the same rate as after sentence (approximately 329 per 100 000 
persons in the population before trial, and 334 after sentence), the pre-trial 
admission rate of black people was twice their sentenced admission rate 
(approximately 2,136 per 100 000 before trial, and 1,051 after sentence). 

The most dramatic differences in admission rates of white and black adults involve 
pre-trial imprisonment for highly discretionary charges. In 1992/93 the black pre- 
trial admission rate for drug trafficking/importing charges was 27 times higher than 
the white rate; for drug possession charges, the black pre-trial admission rate was 15 
times higher, and for obstructing justice charges, the black pre-trial admission rate 
was 13 times higher. 



iv Executive Summary 

These data cannot be rationalized by racial or cultural propensities to commit 
offences. Nor can they be explained as a product of a criminal justice system 
composed of overtly or covertly racist officials. 

However, racialization in Canadian society is a recognized fact both inside and 
outside the criminal justice system. Wherever broad discretion exists, racialization 
can influence decisions and produce racial inequality in outcomes. Such discretion is 
evident at several stages of the process that results in imprisonment before trial or 
after conviction. 

Imprisonment Before Trial 

The discretionary powers of officials who deal with accused persons before trial 
provide considerable scope for racialization to influence detention decisions. 
Racialization may influence police decisions about whether to release accused 
persons, and may affect the bail process through information the police supply to 
crown attorneys. Racialized decisions may also be promoted by criteria used to 
predict whether an accused will fail to appear at trial or is "substantially likely" to 
commit a criminal offence before trial. 

A major study of detention decisions about black and white accused charged with 
the same offences indicates that white accused were more likely to be released by 
the police and less likely to be detained after a bail hearing. White accused were 
treated more favourably even though they were more likely than black accused to 
have a criminal record and to have a more serious record. 

Detailed analysis of these data revealed no evidence of differential treatment for 
some types of charges laid against white and black accused, but substantial 
differences for other charges. Differential treatment was most pronounced for 
accused charged with drug offences. Within this sub-sample, white accused (60%) 
were twice as likely as black accused (30%) to be released by the police. Black 
accused (31%) were three times more likely than white accused (10%) to be refused 
bail and ordered detained. 

Further analysis of the drug charge sample indicates separate patterns of 
discrimination at the police and court stages of pre-trial detention. Across the sample 
as a whole, the results of differential treatment evident at the police stage were 
subsequently transmitted into the court process. Police decisions to detain black 
accused at a higher rate than white accused meant that the bail courts saw a 
significantly higher proportion of black accused. Thus, even similar rates of denying 
bail at court resulted in larger proportions of black accused being jailed before trial. 

Employment status (as described by the police) accounted for some of the racial 
inequality in imprisonment before trial, both for the sample as a whole and for the 
drug charge sample. But it does not fully explain the findings. Other ties to the 
community considered at bail court, such as fixed address and single status, also fail 
to account for the differential outcomes. 



Executive Summary v 



The data disclose distinct and legally unjustifiable differences in detention decisions 
about black and white accused across the sample as a whole and for some specific 
offences. The conclusion is inescapable: some black accused who were imprisoned 
before trial would not have been jailed if they had been white, and some white 
accused who were freed before trial would have been detained had they been black. 

In light of these findings, the Commission makes 13 major recommendations to 
address differential treatment in the bail process. The Commission recommends 
training programs and operating guidelines based on the principle of restraint in 
exercising powers to detain. The police should be required to explain their decisions 
to detain people, and should receive explicit direction about preparing reports on 
accused persons for bail hearings. The Crown Policy Manual should be amended to 
help crown attorneys address the problem, and education for judges should 
emphasize avoidance of discriminatory assumptions and practices. Persons in police 
custody should be assisted in preparing for bail hearings to ensure that they are not 
detained because the bail court lacks crucial information about them. 

Charge Management 

Charge management is the complex administrative system for processing criminal 
charges outside trial courts. It includes decisions about laying and reviewing 
charges, diversion of cases away from court proceedings, plea negotiations and other 
resolutions before charges are tried, and criminal justice services for accused 
persons and victims. Discretion is the essence of charge management. Access to 
high-quality services is necessary to ensure that people do not experience the charge 
management system as discriminatory. 

During the early stages of criminal proceedings, police, crown attorneys and defence 
counsel often made rapid decisions, based on limited information and hidden from 
public scrutiny. Racialized assumptions and stereotypes may influence these 
decisions in various ways, some quite subtle. Decision-makers engaged in their daily 
routines may not recognize any such bias unless they are constantly alert to the risk. 

Commission research disclosed widespread perceptions and many experiences of 
racial discrimination in police charging. A Commission study comparing outcomes 
of crown attorney decisions to proceed summarily or by indictment indicates small 
but statistically significant differences favouring white accused. 

Inadequate access and low participation rates of racialized people in diversion 
programs are serious concerns. Some defence and duty counsel say these problems 
reflect arbitrary guidelines and unwillingness by crown attorneys to divert charges. 
Others blame the police for failing to tell eligible accused persons from racialized 
communities how to apply for diversion programs. 

Racialized Ontarians have serious concerns about access to legal aid services. 
Services need to be expanded and publicized so that all Ontarians know about the 
legal aid system and understand their rights to apply for assistance. 



vi Executive Summary 



Deep distrust of plea negotiations was among the most recurrent themes of the 
Commission's public consultations. Three aspects of this system are of particular 
concern. First, many unrepresented accused who may be offered a resolution in 
return for a guilty plea have little understanding of the case against them or how the 
evidence may affect the resolution proposal. Second, represented accused persons 
are generally excluded from discussions about resolving the charges without a 
contested trial, which creates suspicion about the agreements that lawyers present to 
their clients. Third, even after apparently accepting an agreement, many accused 
persons from racialized communities do not understand its implications. 

The dominant issue of systemic racism raised by victims concerned mandatory 
charging policies in family violence cases. These policies are intended to reduce or 
eliminate police discretion to handle family violence informally and crown attorney 
discretion to withdraw charges or otherwise abandon prosecutions. They require 
charges to be laid and prosecutions to proceed even against the wishes of the victim. 

There are two conflicting views about whether these policies protect women from 
racialized communities. One is that mandatory charging may be driving family 
abuse underground. Women who require protection but are unwilling to pursue 
criminal prosecution may not call for police protection from violence. The second is 
that directives to charge and prosecute are still not treated as mandatory by the 
police and crown attorneys when the victim is from a racialized community. 

The Commission makes 17 major recommendations to structure the exercise of 
discretion and improve the charge management process. They include alternatives to 
police charging, expanding the scope of diversion programs, reforms to legal aid 
services, greater openness in resolution discussions, more flexibility in the 
prosecution of violent offences within families, and expansion of services for 
victim/witnesses. 

Court Dynamics 

Many Ontarians perceive courts as unfairly biased against black or other racialized 
people. Toleration of practices that may contribute to such perceptions is a 
significant problem because Ontario legal tradition has long held that public 
confidence is fundamental to an effective criminal justice system. Nowhere is this 
confidence more important than in the courts, where the system's commitment to 
equality is most visible. 

Commission studies indicate that some judges, justices of the peace and lawyers 
frequently refer in open court to the foreign origins or ethnic backgrounds of the 
accused, and sometimes also of victims or other witnesses. Some references were 
obviously intended to be benign, and in a few instances were linked to a legally 
relevant issue. More often, it was hard to discern any legitimate purpose; 
occasionally, foreignness was explicitly mentioned as a reason for a harsh decision 
about an accused person. The tendency for some judicial officers and lawyers to act 
as if a person's origin matters to the criminal justice system results in a sense of 



Executive Summary vii 

exclusion among members of racialized communities and iaci< of confidence that the 
system treats everyone equally. 

Communication barriers also cause black and other racialized participants in court 
proceedings to feel excluded. Under-representation of black and other racialized 
persons among jurors, judges and lawyers creates a sense of exclusion by conveying 
an image of the criminal justice system as a white institution. 

The Commission makes 12 major recommendations to modify courtroom practices 
and dynamics that contribute to the appearance of racial injustice. These include 
procedures to restrict references to race, foreign origins or immigration status; 
reforms to complaints mechanisms; improvements to in-court interpretation services; 
and measures to ensure more representative juries. 

Imprisonment After Conviction 

Sentencing is highly discretionary, with considerable scope for disparate outcomes. 
Differences in how the facts of a case come before judges, how judges view those 
facts, the goals and principles of sentencing and the role of courts in passing 
sentence may all contribute to disparities. 

Racialized judgments and assumptions may also contribute to differential sentencing. 
They may directly influence the decisions of sentencing judges, or may be 
transmitted from decisions made at earlier stages of the criminal justice process. 

A major study of imprisonment decisions for the same offences indicates that white 
persons found guilty were less likely than black persons to be sentenced to prison. 
White people were sentenced more leniently than black people found guilty, even 
though they were more likely to have a criminal record and to have a more serious 
record. The differential was most pronounced among those convicted of a drug 
offence. Within this sub-sample, 55% of black but only 36% of white convicted 
persons were sentenced to prison. 

Detailed analysis revealed no significant differences in the incidents that led to the 
charges. Employment status and differences in criminal justice variables such as 
imprisonment before trial accounted for some of the racial inequality in 
incarceration rates. But a significant (though small) differential in incarceration rates 
remains, which is not due to gravity of charge, record, plea, crown election, pre-trial 
detention, unemployment or other social factor. The most likely explanation for this 
differential is racial discrimination at sentencing. 

The average prison terms of black prisoners in this study were significantly shorter 
than those of white prisoners. This is consistent with differential incarceration rates 
producing imprisonment of convicted black persons whose offences and records 
would not have led to imprisonment had they been white. Another reason may be 
that because black accused are more likely to have been imprisoned before their 



viii Executive Summary 

trials, they are more likely than white accused to receive discretionary "credit" for 
their pre-trial detention. 

The Commission makes six major recommendations to address differential outcomes 
in sentencing. These include a call for restraint in the use of prison sentences, 
education for judges on the practical implications of imprisonment, providing more 
information on programs for serving sentence in the community, and reforms giving 
crown attorneys more guidance on sentence submissions. 

Racism Behind Bars Revisited 

The treatment of black and other racialized prisoners was the subject of the 
Commission's Interim Report, Racism Behind Bars. This report showed that racism 
may operate as an indirect means of controlling prisoners and made 10 major 
recommendations to reduce overt and systemic racism in Ontario prisons. 

Racialized judgments and assumptions may also influence direct mechanisms of 
control in prisons, such as the discretion of authorities to impose punishments, and 
to limit access to benefits, such as discretionary release programs. 

An exploratory Commission study indicates racial differences exist in the application 
of institutional discipline. The data suggest trends indicating over-representation of 
black men, women and male youths among prisoners charged with misconducts. 
They also indicate that black prisoners were more likely than white prisoners to be 
charged with the types of misconducts over which correctional officers exercise 
greater subjective judgment. Black prisoners were less likely than white prisoners to 
be disciplined when the discretionary powers of correctional officers are limited by 
the need to show objective proof. 

Discretionary release programs, such as temporary absence and parole, allow 
convicted prisoners to begin supervised reintegration into the wider community 
while serving sentence. Exploratory studies indicate that prisoners from racialized 
and linguistic minority communities are more likely to obtain equal access to these 
programs if institutions adopt a proactive "case management" model rather than a 
reactive, ad hoc approach. 

The Commission makes seven major recommendations to supplement those in the 
Interim Report. These include measures to enhance openness and public 
accountability of prison practices, review of the discipline process to foster greater 
restraint and consistency in their application, and establishment of a case 
management system to advise and counsel every prisoner about available prison 
services and programs. 



Executive Summary ix 



Community Policing 

Community policing is based on a piiilosophy of partnership between the police and 
the community, emphasizing peacekeeping, problem-solving and crime prevention. 
Many Ontario police services have recently adopted policies that reflect this 
philosophy. However, members of black and other racialized communities, 
particularly women and youths, feel excluded from co-operative partnerships with 
the police and fear that racial equality is not on the community policing agenda. 

Perceptions that the police discriminate against black and other racialized people are 
widespread. A Commission survey shows that 74% of black, 54% of Chinese and 
47% of white Metropolitan Toronto residents believe that the police do not treat 
black people the same as white people. About nine in ten of those who perceive 
differential treatment believe the police treat black people worse than white people, 
and more than seven in ten think it occurs about half the time or more. 

Perceptions of discrimination against Chinese people are less common but still 
significant. In Metropolitan Toronto, 48% of black, 42% of Chinese and 24% of 
white residents think the police do not treat Chinese people the same as white 
people. Eight in ten of those who perceive differential treatment believe the police 
treat Chinese people worse than white people, and more than half think such 
differential treatment occurs about half the time or more. 

How the police exercise their discretion to stop and question people contributes 
significantly to lack of confidence in equal treatment. Black Metro residents (28%) 
are much more likely than white (18%) or Chinese residents (15%) to report having 
been stopped by the police in the previous two years. Black residents (17%) are also 
more likely than white (8%) or Chinese (5%) residents to report multiple stops in 
the previous two years. 

Black men are particularly vulnerable to being stopped by the police. About 43% of 
black male residents, but only 25% of white and 19% of Chinese male residents 
report being stopped by the police in the previous two years. Significantly more 
black men (29%) than white (12%) or Chinese (7%) report two or more police stops 
in the previous two years. 

The Commission makes nine major recommendations designed to improve the 
governance and delivery of community policing in Ontario. These include local 
community committees to establish policing objectives that refiect community needs, 
action plans to secure equality in policing, guidelines for the exercise of police 
discretion to stop and question people, and enhancing the complaints system to 
promote systemic monitoring of police practices. 



X Executive Summary 

Systemic Responses To Police Shootings 

Since 1978, 16 black civilians have been shot - 10 fatally - by on-duty police 
officers in Ontario. The number of shootings and their circumstances have 
convinced many black Ontarians that they are disproportionately vulnerable to police 
violence. These concerns have spurred strong opinions about how the criminal 
justice system should respond to police shootings of black and other racialized 
people. One key demand is that any death or serious injury caused by the police be 
closely scrutinized by an open and fair process designed to determine if the use of 
force was justified. A crucial element of such a process is that it should explicitly 
examine the contribution, if any, of systemic racism to the death or injury. 

The criminal trial process deals only with strictly circumscribed issues in a strictly 
circumscribed manner. Thus expectations that the criminal trials will provide a 
forum for examination of systemic racism are unrealistic. Nevertheless, criminal 
prosecutions should continue to be invoked to enhance accountability for improper 
use of force. 

Unlike a criminal trial, a coroner's inquest has a broader capacity to canvass the role 
of systemic racism in police killings of black civilians. The Commission 
recommends that legally trained persons serve as coroners for cases involving police 
shootings and that these coroners rely exclusively on independent investigators and 
special crown attorneys. The Commission also recommends that the Ontario Civilian 
Commission on Police Services be provided with adequate resources to investigate 
systemic racism in police shooting cases. 

An Equality Strategy for Justice 

Specific reforms need the support of a framework for securing racial equality in the 
administration of justice. This framework has four key elements: anti-racism training 
of justice personnel; employment of racialized persons in the administration of 
justice; participation of racialized persons in the development of justice policies; and 
monitoring of practices for evidence of racial inequality. The Commission makes 
five broad recommendations to achieve these goals. 

Looking Forward 

The elimination of systemic racism from Ontario's criminal justice system requires 
collective action from all of its members. Above all an aggressive commitment is 
needed to secure racial equality. This will require integrating principles of inclusion, 
responsiveness, and accountability into all aspects of the criminal justice system, 
together with an overriding commitment to restraint when invoking judicial 
sanctions. Only by working in partnership with the community can an accountable 
system reduce the risk of inadvertent acceptance of racial inequality. 



Executive Summary xi 

monitoring of practices for evidence of racial inequality. The Commission makes 
five broad recommendations to achieve these goals. 

Looking Forward 

The elimination of systemic racism from Ontario's criminal justice system requires 
collective action from all of its members. Above all an aggressive commitment is 
needed to secure racial equality. This will require integrating principles of inclusion, 
responsiveness, and accountability into all aspects of the criminal justice system, 
together with an overriding commitment to restraint when invoking judicial 
sanctions. Only by working in partnership with the community can an accountable 
system reduce the risk of inadvertent acceptance of racial inequality. 



XI 



Chapter 1 
Introduction 



The Commission on Systemic Racism in the Ontario Criminal Justice System was 
estabhshed by the Govemment of Ontario, in October 1992, to inquire into and 
make recommendations about the extent to which criminal justice practices, 
procedures and policies reflect systemic racism. We were directed to concentrate on 
urban centres in Ontario, to "utilize anti-black racism as a focal point for ... 
analysis," to recognize 'the various experiences and vulnerabilities of all racial 
minorit>' communities, including racial minority women" and to "pay particular 
attention to the impact of systemic racism on racial minority youth.'"" 

As required by the Terms of Reference, the Commission prepared an interim report. 
Racism Behind Bars, released in February, 1994, which dealt with some aspects of 
the treatment of racial minority adults and youths in Ontario prisons. Other terms 
direct the Commission to investigate: the exercise ofydiscretion at important 
decision-making points, community policing policies and their implementation, 
systemic responses to allegedly criminal conduct by justice officials in relation to 
racial minority victims, preventing systemic racism through employment practices, 
policy-making and participation of racial minorities in reform processes, and access 
to justice services by racial minorities. This Report presents our findings and 
recommendations . 

The appointment of the Commission was recommended by Stephen Lewis in his 
June 1992 report to the Premier of Ontario, which was a response to civil 
disturbances in Metropolitan Toronto during May 1992. His report on experiences of 
racism in this province reiterated what black and other racial minority Ontarians 
have been saying for many years.'' They believe the criminal justice system treats 
them worse than white people. 



See Appendi.x A. 

A 1983 federal govemment study concluded that perceptions of unfair treatment in the criminal justice system were 
widespread among visible minority Canadians It stated, "Currently, one of the results of the latent and overt racism 
in Canada is a distrust on the part of visible minorities regarding the legal apparatus. Police, lawyers, judges and 
correctional stiifT are felt to be antagonistic towards visible minorities." Canada, Minister of State Multiculturalism, 
Race Relations and the Law (Ottawa: Minister of Supply and Services Canada, 1983), p. 29. 

1 



2 Introduction 



Over the past two decades, a lack of confidence in the Ontario criminal justice 
system has been articulated particularly strongly by members of black communities. 
Fears have been aroused by several police killings and woundings of black persons 
since 1978, and sustained by the apparent inability of the system to examine how far 
racism contributed to these tragedies. A sense of injustice has been intensified by 
the lack of any systemic response to repeated experiences of arbitrary and 
humiliating encounters with the police. Feelings of exclusion from the system have 
been reinforced by under-representation of black and other racial minority 
communities among justice officials. There are strongly held perceptions that black 
and other racial minority people are often unfairly charged, unjustly denied bail, 
unnecessarily prosecuted, wrongly convicted, harshly sentenced and mistreated in 
prisons. 

In addition to expressing their fears and concerns, black Ontarians have worked for 
change. They have organized with members of other racial minority communities 
and social justice groups to build community pressure for reforms, especially to 
policing. These efforts have led to several major inquiries into police practices, the 
most recent of which have focused on improving police relationships with racial 
minority communities.' Until the establishment of this Commission, however, no 
public inquiry has investigated concerns about systemic racism throughout the 
criminal justice system in Ontario. 

Similar developments have occurred in other jurisdictions, where an initial focus on 
police treatment of racial minority or indigenous peoples has gradually expanded to 
encompass practices in other parts of the complex criminal justice system. Canadian 
examples include the Donald Marshall Inquiry (Nova Scotia), '^ the Cawsey Inquiry 
(Alberta)' and the Aboriginal Justice Inquiry (Manitoba)." Internationally, the New 
Zealand government has investigated "institutional racism" in the criminal justice 
system in relation to Maori people' and government bodies in the United Kingdom 
have sponsored research into the treatment of ethnic minorities in its courts and 
prisons.^ Over the last ten years, courts across the United States have established 
commissions to study racial and ethnic bias in their practices. ^ 

A common feature of these inquiries is an emphasis on "systemic" or "institutional" 
racism as opposed to individual or overt racism. They have generally assumed that 
the vast majority of professionals in the criminal justice system under examination 
do not consciously intend to treat racial minority people worse than white people. 
Nevertheless they have recognized that even a criminal justice system staffed with 
well-intentioned professionals may operate in subtle and unfair ways that have 
adverse impacts on racial minority and indigenous peoples. These inquiries have 
therefore attempted to identify discriminatory practices with the object of 
eliminating them. 

This Report takes the same approach. The Commission assumed that persons with 
explicitly hostile attitudes towards racial minority people would constitute no more 



Introduction 3 



than a tiny minority of professionals within the criminal justice system. Any attempt 
to investigate them would not only fall outside our mandate, but also would fail to 
identify the underiying reasons why members of racial minority communities report 
lack of confidence in the administration of criminal justice. 

As directed by the Terms of Reference we recognized that "throughout society and 
its institutions patterns and practices develop which, although they may not be 
intended to disadvantage any group, can have the effect of disadvantaging or 
permitting discrimination against some segments of society." In so far as such 
patterns and practices cause racial minority people to experience worse treatment 
than white people a system may be said to reflect systemic racism. Thus the 
Commission's task involves the identification of such patterns and practices and the 
development of recommendations to eliminate them. 

Equality is a fundamental right in Canada, guaranteed by the constitution and 
protected by federal and provincial human rights codes. The Canadian Charter of 
Rights and Freedoms states that - 

Every individual is equal before and under the law and has the right to the equal 
protection and equal benefit of the law without discrimuiation and, in particular, 
without discrimination based on race ....** 

The Ontario Human Rights Code declares that - 

Every person has a right to equal treatment ... without discrimination because of 



The right to equality places two key demands on the criminal justice system. First, it 
must not perpetuate bias against members of groups that "have experienced arbitrary 
exclusions or burdens based not on their actual individual capacities, but on 
stereotypical characteristics ascribed to them because they are attributed to the group 
of which the individuals are a member."'" Second, equality requires the criminal 
justice system to adapt to diversity within the community it serves. A system that 
provides only uniform treatment, in effect, treats people unequally by ignoring the 
needs of those who do not fit into its mould. 

A system that claims equality as a fundamental value lacks credibility if the public 
is not convinced that the system is committed to achieving it. In democratic 
societies, justice systems depend heavily on public confidence that they demonstrate 
and affirm important social values. While lack of credibility does not prevent 
criminal sanctions from being administered, it may cause them to be perceived as no 
more than oppression. Identifying and responding to such perceptions should 
therefore be among the highest priorities of the criminal justice system. 

The Commission consulted extensively, as required by our mandate. We spoke with 
representatives of every part of the criminal justice system and- community 



4 Introduction 



organizations that deal with justice issues. We held focus groups and structured 
interviews on specific areas of concern with policy-makers, lawyers, justices of the 
peace, police officers, members of the private security industry, interpreters, 
community members, prisoners and correctional staff. We also conducted public 
hearings and invited submissions from across the province. These consultations were 
supplemented and enhanced by large-scale surveys of crown attorneys, defence 
counsel and judges, and smaller surveys of other representatives of the justice 
system. Residents of Metropolitan Toronto, Ontario's largest and most diverse city, 
were also surveyed. 

The Commission conducted research to determine whether the criminal justice 
system produced different results for white and racial minority people. Our initial 
studies, such as the analysis of prison admissions, attempted to determine whether 
evidence consistent with differential treatment exists. Subsequent empirical studies, 
such as the major studies of bail and sentencing, made detailed comparisons of the 
exercise of discretion affecting black and white persons charged with the same 
offences. Additional research included systematic analysis of files, review of laws, 
policies and procedures, and research of Canadian and international literature related 
to the treatment of racial minorities in criminal justice systems. 

This Report is divided into three parts. The first four chapters, "Setting the Scene," 
introduce the key issues that dominated the Commission's inquiry. We make no 
recommendations in this part, but simply present basic findings. Chapter 2 focuses 
on perceptions of racial inequality in the criminal justice system. It documents 
findings about the extent to which black, white and Chinese residents of 
Metropolitan Toronto believe judges treat people unequally. It also presents the 
responses from surveys of defence counsel, crown attorneys, general and provincial 
division judges about systemic racism in the administration of justice. 

Chapter 3 attempts to establish a common understanding of systemic racism. The 
chapter spells out the elements of systemic racism, explores its historic roots and 
discusses different ways of recognizing it in social institutions. 

Chapter 4 examines adult and youth admissions to Ontario prisons. Imprisonment, 
the harshest treatment that our criminal justice system imposes, is the major focus of 
our research into the exercise of discretion. The chapter documents white and racial 
minority representation in prison admissions and identifies recent and disturbing 
trends. 

The second part of the Report, "Examining Practices," (chapters 5 to 9), analyzes 
existing practices at different stages of the process and presents specific 
recommendations. Chapter 5 concerns imprisonment before trial and the bail system. 
It presents a major Commission study comparing pre-trial detention for white and 
black persons charged with the same offences and findings from several smaller 
studies. 



Introduction 5 



Chapter 6 deals with "Charge Management," by which we mean the complex system 
of decision-making about laying and reviewing charges, diversion of charges away 
from court proceedings, "plea-bargaining," and criminal justice services for accused 
persons and victim/witnesses. Chapter 7 reports on practices that cause people to 
perceive or experience racial injustice in Ontario criminal courts. Chapter 8 
examines sentencing discretion and documents findings from a major study of 
sentences imposed on white and black persons charged with the same offences. 
Chapter 9 returns to the theme of the Commission's Interim Report, the treatment of 
racial minority prisoners. 

The third part of this Report, "Moving Forward," focuses on broadly based, 
systemic policies and programs to address racial inequality in order to enhance 
confidence in the criminal justice system. Chapter 10 considers how a community 
policing system might respond effectively to public concerns about systemic racism 
in poHcing. Chapter 11 addresses community concerns about a series of police 
shootings of black civilians in recent years. Chapter 12 makes recommendations that 
apply to various phases of the administration of criminal justice. 

The concluding chapter articulates a direction for the future. It sets out the four key 
principles of action that underpin equality in the criminal justice system: restraint in 
the use of the criminal law, inclusiveness, responsiveness and accountabihty. 



6 Introduction 



Endnotes 



1. 



Cardinal Gerald Emmett Carter, Police Report to the Civic Authorities of Metropolitan 
Toronto and its Citizens (Toronto, [Catholic] Archdiocese of Toronto, 1979); Canadian 
Association of Chiefs of Police, Proceedings of the Symposium on Policing in 
Multicultural/Multiracial Urban Communities, Oct. 14-16, 1984, Vancouver (Ottawa: 
Secretary of State and the Canadian Association of Chiefs of Police Research Foundation, 
1984); Metro Toronto Task Force on Human Relations, Now is Not Too Late (Toronto: 
Council of Metropolitan Toronto, 1977), chair, Walter Pitman; Province of Ontario, Race 
Relations and Policing Task Force, Report of the Race Relations and Policing Task Force, 
chair, Clare Lewis (Toronto: Task Force, 1989); Kathryn E. Asbury. Building Police 
Community Partnerships with Culturally, Racially and Linguistically Diverse Populations in 
Metropolitan Toronto (Toronto: Council on Race Relations and Policing, 1992); Province of 
Ontario, Report of the Task Force on the Racial and Ethnic Implications of Police Hiring, 
Training, Promotion and Career Development, chair, Reva Gerstein (Toronto: Ministry of 
the Solicitor General, 1980); The Liaison Group on Law Enforcement and Race Relations, 
Changing Attitudes for the Eighties, proceedings of a seminar on police/commimity relations 
(Toronto: The Liaison Group, 1980); Multiculturalism and Citizenship Canada, Federal 
Report on Policing in a Multicultural Society: October 1989 (Ottawa: Secretary of State for 
Multiculturalism and Citizenship, 1989); Joseph R. Manyoni and Michael Petrimik, Race 
Relations and Crime Prevention in Canadian Cities (Ottawa: Federation of Canadian 
Municipalities, 1989). 

Province of Nova Scotia, Royal Commission on the Donald Marshall, Jr. Prosecution 
(Halifax: 1989) 

Province of Alberta, Report of the Task Force on the Criminal Justice System and its 
Impact on the Indian and Metis People of Alberta, chair, R.W. Cawsey ("Cawsey Report") 
(Edmonton: March, 1991). 

Province of Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba, Public Inquiry 
into the Administration of Justice and Aboriginal People (Winnipeg: 1991). 

New Zealand, Department of Justice, The Maori and the Criminal Justice System A New 
Perspective: He Whaipaanga Hou (Wellington: Department of Justice, 1988). 

Roger Hood, Race and Sentencing (Oxford, Clarendon Press, 1992); Ros Burnett and 
Graham Farrell, Reported and Unreported Racial Incidents in Prisons, Occasional Paper No. 
14, Centre for Criminological Research, University of Oxford, (Oxford: Centre for 
Criminological Research, University of Oxford, 1994). 

See, for example, Massachusetts Supreme Judicial Court, Commission to Study Racial and 
Ethnic Bias in the Courts, Equal Justice: Eliminating the Barriers (Boston: Supreme Judicial 
Court, 1994); California Judicial Council, Advisor>' Conunittee on Racial and Etlmic Bias in 
the Courts, 1991-1992 Public Hearings on Racial and Ethnic Bias in the California State 
Court System (San Francisco: Judicial Council, 1993), and Fairness in the California State 
Courts: A Survey of the Public, Attorneys and Court Personnel (San Francisco: Judicial 
Council, 1994); New York State Judicial Commission, Report of the New York State Judicial 
Commission on Minorities (Albany: Judicial Commission, 1991); Florida Racial and Ethnic 



9. 



Introduction 7 



Bias Commission, Report and Recommendations of the Florida Racial and Ethnic Bias 
Commission (Florida Supreme Court, 1991); Michigan Supreme Court Task Force on 
Racial/Etlmic Issues in tlie Courts, Final Report of the hfichigan Supreme Court Task Force 
on Racial/Ethnic Issues in the Courts (Lansing: Department of Management and Budget, 
1 989); New Jersey Supreme Court Task Force on Minority Concerns, Final Report, Jime 
1992 (New Jersey: Supreme Court, 1992). 

Canadian Charier of Rights and Freedoms, s. 15(1). 

R.S.O. 1990, c.H-19, s. (1). 



'°- R. V. CM. (1995) 98 C,C.C.(3d) 481 (Ont. C.A.) at 485 per Abella J. A. 



PART I 



Setting the Scene 



Chapter 2 Racism in Justice: Perceptions 

Chapter 3 Racism in Justice: Understanding 

Systemic Racism 

Chapter 4 Racism in Justice: Prison Admissions 



Chapter 2 

Racism in justice: Perceptions 



Our justice system can survive, only so long as it continues to have 
the confidence of the public it is designed to serve .... That 
confidence, however, must be earned and not assumed ...' 

- The Honourable Charles L. Dubin, Chief Justice of Ontario 



Do Ontario residents think there is racism in the criminal justice system? The 
Commission conducted consultations and surveys to answer this question. At the 
most general level, we asked Ontarians to write or call us, and to share their views 
at public forums held in urban centres throughout the province. We also hosted or 
sponsored a large number of consultations with members of the public, lawyers, 
police officers, justices of the peace, probation officers, government policy-makers, 
prison workers and managers, members of Ontario's board of parole, academic 
experts, equity workers and representatives of community organizations involved in 
the criminal justice system. 

These consultations produced rich and vital information about people's beliefs and 
experiences. They alerted us to the complexities of our task, highlighted important 
differences in perspectives and gave us a better understanding of problems and 
possible solutions. 

At the same time we realized that these methods, when used to research inequality 
and discrimination, are often controversial. They may be criticized as too selective 
or biased. They are said to result in over-representation of the views of those most 
interested in the issues and under-representation of what the average person thinks. 
Critics frequently dismiss their findings as anecdotal and unscientific. We do not 
accept this dismissal of personal testimony, but we do recognize that this type of 
research has limits.^ 

To avoid fruitless debates about how many people really think racism is a problem 
in Ontario's criminal justice system, and because we recognize that it is useful to 
look at this question from different research perspectives, we conducted and 
commissioned several opinion surveys. Each deals with several themes, resulting in 
data that will appear in subsequent chapters. Here we present findings about what 



11 



12 SETTING THE SCENE 

people inside and outside the justice system think generally about racial and other 
forms of discrimination in Ontario's criminal justice system. 

First, we describe the survey results of Metro Toronto residents' views on whether 
judges treat people equally. We focused on judges because of their special role in 
criminal justice. To many people, judges are the criminal justice system. They are 
taken to epitomize its values and to stand for the system's commitments to integrity 
and impartiality. People have high expectations of judges and want to think well of 
them: 

The black accused sees the judge as standing between him and the oppressive 
power of the state. He ... expects the judge to be neutral and impartial .... [and] 
expects the trial judge to exercise discretion without fear or prejudice.^ 

Second, we present findings from the Commission's surveys of Ontario's trial 
judges and criminal lawyers. We asked these legal professionals about specific 
concerns that people had drawn to our attention, and also encouraged general 
comment on the issues raised by our inquiry. 

After briefly describing the roles of the different legal professionals, we report the 
perceptions by those surveyed of differential treatment and systemic discrimination, 
illustrated by selections from their direct comments. In presenting these comments, 
our goals are to represent fairly what we were told and to provide opportunities for 
lawyers and judges to speak directly to those they may see as their critics, as well as 
to one another. Though we organize the comments under themes, the Commission 
makes no attempt, at this stage, to analyze individual remarks. Later in the Report 
we return to some of these perceptions in discussing specific aspects of the 
administration of criminal justice. 

Perceptions of racial inequality 

In essence, our surveys of the general population and legal professionals show - 

• widespread perceptions among black, Chinese and white Torontonians that 
judges do not treat people equally. 

• widespread perceptions among black, Chinese and white Torontonians that 
judges discriminate on the basis of race. 

• much more widespread perceptions among black than among white or Chinese 
Torontonians that judges discriminate on a variety of grounds, and specifically 
because of race. 

substantial variation among justice professionals in their perceptions of racial 
discrimination in Ontario's courts. 

• strong resistance by some judges and lawyers to any suggestion of racial 
discrimination in Ontario's criminal courts. 



Racism in Justice: Perception 13 

Metro Toronto residents' perceptions 

To find out what members of the general pubHc think about discrimination in 
Ontario's justice system, the Commission asi<ed an independent research body, Yortc 
University's Institute for Social Research, to survey adults from three significant 
groups in Metro Toronto. In addition to perceptions, the survey asked respondents 
about their experiences with some aspects of the criminal justice system. Reference 
will be made to these in subsequent chapters. The survey was carried out by 
telephone interviews, in English or Chinese, with randomly selected individuals who 
identified themselves as black, Chinese or white.' 

The survey focuses on Metro Toronto rather than all of Ontario because of the high 
concentration of racial minority people living there. Canadian census estimates for 
1991 indicate that racial minority communities now comprise 29% of the population 
of Metro Toronto, as compared to 14% of the population of Ontario as a whole. 
Moreover, over half of Ontario's black (54%) and Chinese (61%) populations live 
within Metro Toronto." 

Black residents were selected because our Terms of Reference direct the 
Commission to focus on anti-black racism and because black people are the largest 
racial minority group in Ontario. Chinese residents were selected because they make 
up the second-largest racial minority group in Ontario. White residents were selected 
to provide a comparison of their opinions and experiences with those of members of 
racial minorit>' groups. 

Ideally, the Commission would have surveyed opinion among all racial minority 
populations in Toronto, but resource limitations prevented us from pursuing a more 
comprehensive project. In order to make statistically accurate generalizations, we 
needed a minimum of 400 respondents from each group surveyed.^ Confronted with 
the cost estimates of finding a sufficient number of respondents from smaller racial 
minority communities, the Commission decided to restrict our study to three groups. 

Interviews were completed with 417 black, 405 Chinese and 435 white residents (all 
self-identified), for a total of 1,257 people. General demographic characteristics of 
people in the sample - such as income, age and education - are consistent with the 
most recent census data, which indicates that the sample is representative of black, 
Chinese and white Metro Toronto residents. Since the survey randomly sampled 
more than 400 people in each of the selected racial groups, the findings or estimates 
for each group are said to be accurate, plus or minus five percent, 95 times in 100. 



t 



Random digit dialling was used to select the households, so that all members of the black, Chinese and white 
communities in Metro Toronto had an equal chance of being chosen for interview. 

Using data from the 1991 Canadian census, we estimated that it would take approximately 5,700 random telephone 
calls to fmd 400 black people, and 5,000 calls to find 400 Chinese people. Locating the same number of South 
Asian people would have required 6,700 calls, and identifying 400 VieUiamese respondents would have required 
50,000 calls. 



14 SETTING THE SCENE 

In this chapter we present findings about perceptions of unequal treatment by 
judges. This aspect of the survey addresses three general questions: 

• How extensive are perceptions of unequal treatment in Ontario's criminal justice 
system? 

• Do these perceptions vary amongst racial minority and white communities? 

• Are some racial minority communities perceived as more likely to receive 
discriminatory treatment than others? 

Although racism is the key subject of this Report, our Terms of Reference also 
direct us to pay special attention to women and youth. Therefore, we also asked 
about perceptions of differential treatment by judges because of age and gender. In 
addition, because many judges and lawyers had suggested that income is the real 
explanation for what might appear to be racial discrimination in the criminal justice 
system, we asked about perceptions of differential treatment due to income. 

What Metro Toronto residents think about judges 

We asked the residents surveyed if they think, in general, that judges treat people in 
the different comparison groups the same. Those who responded negatively were 
then asked if they think one group is treated better or worse than another, and how 
frequently they think differential treatment occurs. As a whole, our findings show 
that a large proportion of the Metro Toronto population think Ontario's criminal 
court judges do not treat everyone the same. For each comparison, at least one- 
quarter of the people in the sample perceive differential treatment. 

People who think judges do not treat people equally believe - 

Young people are treated worse than older people. 

Poor people are treated worse than wealthy people. 

Men are treated worse than women. 

Black people are treated worse than white people. 

Chinese people are treated worse than white people. 

People who do not speak English are treated worse than people who do speak 
English. 

When comparing judges' treatment of black people and white people - 

• More than five in ten (52%) black respondents, three in ten (31%) Chinese 
respondents and more than three in ten (36%) white respondents believe judges 
do not treat black people the same as white people. 

• Among those in each group who perceive differential treatment of black and 
white people, at least eight in ten - 87% of black, 85% of Chinese and 80% of 



Racism in Justice: Perception 15 



white respondents - believe judges treat black people worse or much worse than 
white people. 



Figure 2-1 : Belief that Ontario criminal 
court judges do not treat everyone the same 


Young v. old ^H 




■■ 


■■ 


^^^^Hsa 


Poor V. wealthy ^H 




■■ 


■1 


^^H46 


Men V. women ^^H 




■■ 


■1 


M" 


Black V. white ^^H 




■1 


^H 


■ 40 


English v. non-English -^H 




IH 


■1 


36 


Chinese v. white ^H 




■p 


I28 







10 


20 30 40 50 

Percent of respondents 



60 



When those who believe judges do not treat white and black people the same 
were asked how frequently they think differential treatment occurs - 

• 58% of black, 36% of Chinese and 43% of white respondents think judges 
"often" treat black people differently than white people. 

• Another 30% of black, 25% of Chinese and 28% of white respondents think 
differential treatment of white and black people occurs "about half the time." 

• 10% of black, 31% of Chinese and 26% of white respondents think differential 
treatment of white and black people is rare (occurring "once in a while" or 
"almost never"). 

When comparing judges' treatment of Chinese people and white people - 

• Four in ten (40%) black respondents, close to three in ten (27%) Chinese 
respondents and about two in ten (18%) white respondents believe judges do not 
treat Chinese people the same as white people. 

• Among those in each group who perceive differential treatment of Chinese and 
white people, eight in ten - 81% of black, 80%) of Chinese and 79% of white 



16 SETTING THE SCENE 

respondents - believe judges treat Chinese people worse or much worse than 
white people. 

When those who believe judges do not treat white and Chinese people the same 
were asked how frequently they think differential treatment occurs - 

• 35% of black, 29% of Chinese and 28% of white respondents think judges 
"often" treat Chinese people differently than white people. 

• Another 39% of black, 31% of Chinese and 37% of white respondents think 
differential treatment of white and Chinese people occurs "about half the time." 

• 23% of black, 35% of Chinese and 33% of white respondents think differential 
treatment of white and Chinese people is rare (occurring "once in a while" or 
"almost never"). 



Figure 2-2: Belief that Ontario criminal court judges 
do not treat everyone the same, by race of respondents 



Young V. old 

Poor V. wealthy 

Men V. women 

Black V. white 

English v. non-English 

Chinese v. white 



_ 


■^^ 


IF 


1 


J 39 






^■59 


^ 


^^W 




\ !31 


^^ 


■ 54 


^ 


flF" 


■ «" 


1 130 


52 


-» 


!^ 




1 i31 






]37 




1 










■ 40 





64 



■Black 
□White 
aChinese 



r ' r 



127 



10 20 30 40 50 60 70 80 
Percent of respondents 



Of the three groups in our sample, black residents are consistently more likely to 
perceive differential treatment than either white or Chinese residents. As Figure 2-2 
indicates, black residents are more likely than white or Chinese residents to perceive 
discrimination because of age, sex, wealth and language. 



Black residents are also more likely than white or Chinese residents to think 
discrimination occurs frequently and results in a substantial difference in treatment. 



Racism injustice: Perception 17 

For example. 59% of black respondents, compared with 31% of Chinese and 46% of 
white respondents, think judges do not treat poor people the same as wealthy people. 
Of those who think Judges do not treat wealthy and poor people the same, 51% of 
black respondents, compared with 26% of Chinese and 30% of white respondents, 
think discrimination occurs "often"; 30% of black respondents but only 7% of 
Chinese and 13% of white respondents said judges treat poor people "much worse" 
than rich people. 

Summary of the Metro Toronto residents survey 

What should we make of these perceptions of inequality in the criminal justice 
system? Generally, the survey shows that a significant proportion of Metro Toronto 
residents do not believe the justice system in practice treats everjone equally. 
Beliefs that judges discriminate on the basis of race are strongest among black 
respondents, but significant proportions of the city's white and Chinese communities 
share this view. 

Second, the survey shows that respondents of all three groups are more likely to 
perceive discrimination against black people than against Chinese people. This 
finding suggests people perceive a hierarchy of discrimination.' 

Third, the extent to which black Metro residents perceive bias based on age, wealth, 
gender and language - as well as race - indicates a widespread lack of confidence 
in the fairness of the criminal justice system within this community. These data 
clearly show that a majority of black residents perceive racial bias in the criminal 
justice system,^ and many members of Metro Toronto's black communities are also 
convinced that other forms of bias exist. 

Since these findings deal with perceptions, they do not measure racial differences in 
the daily practices of the criminal justice system and their consequences. But 
findings of opinion are no less important than data about differential outcomes. 
What people think about the criminal justice system matters because the justice 
system, more than many other institutions, depends on the confidence of the 
community. This evidence, that many people lack confidence in the justice system, 
is a reason for grave concern and a call for action. 



This hierarchy is similar to the hierarchy of prejudice documented by many researchers. Studies in both Canada and 
the United States show that white people generally view black people as less "acceptable" than members of other 
ethnic groups. See, for example, Jeffrey G. Reitz, The Illusion of Difference: Realities of Ethnicity in Canada and 
the United States (Toronto: CD Howe Institute, 1994). 

The study confirms findings reported in Stephen Lewis' report to the Premier of Ontario (June 9, 1992), p. 3, and 
implied in The Report of the Race Relations and Policing Task Force, Clare Lewis, chair (1989), pp. 12-14. 



18 SETTING THE SCENE 

Judges' and lawyers' perceptions 

We separately surveyed crown attorneys, defence counsel and judges concerning 
several issues, producing data that we present throughout the report. Here we focus 
on what judges and lawyers think about racial discrimination in the criminal justice 
system. 

.ludges and lawyers have strong personal and professional interests in the 
Commission's work. As actors in the system, they may feel that any problems we 
find reflect on them personally. Few people enjoy public criticism of an institution 
they identify with, however constructively such criticism is intended. Criticism that 
centres on racism is particularly hard to accept. Atrocities such as the European 
enslavement of African people, the Holocaust against European Jews, South Africa's 
former policy of apartheid, the destruction of Aboriginal societies throughout the 
world, and activities of groups such as the Ku Klux Klan commonly come to mind 
when people think of racism. 

The Commission's inquiry focuses on different expressions of racism - those that 
may be unintended and that are implicit in practices rather than explicit in motives 
(see Chapter 3). Even so, it would not be surprising if judges and lawyers find it 
hard to accept that the criminal justice system may reflect systemic racism. In a 
British context, Mr. Justice Henry Brooke made the point effectively when he said, 

... [F]air-minded people are so very easily offended at the very slightest 
suggestion that they have behaved in a way which other equally fair-minded 
people might describe as racist.' 

In addition, judges and lawyers have a strong interest in maintaining public 
confidence in the system. That people believe the justice system to be fair and 
impartial is essential to its integrity. As the recent report of the Martin Committee 
notes, "without integrity, no system of justice, no matter how ingeniously designed 
and lavishly funded, can function."^ Perceptions of discrimination and other forms of 
unfairness, no less than racist practices - however unintended - are simply 
incompatible with this notion of integrity. As a senior police official told the 
Commission, 

"While the justice system is wrapped up in procedure, substantive law and a 
valued history of independence, the only true test of its integrity is its credibility 
within the community it serves." (emphasis in original) 

Judges and lawyers also have a particular interest in the Commission's work 
because they will be held responsible for many of the problems we have found, and 
will be expected to implement changes that may flow from our recommendations. 
Finally, as people whose professional lives are spent in Ontario's courts, judges and 
lawyers are well placed to identify some types of subtle practices that may be less 
visible to those outside the system. By encouraging them to respond to our questions 
frankly, privately and anonymously, we hoped to gain access to this rich source of 
information. 



Racism in Justice: Perception 19 

For all these reasons the Commission felt it was important to understand how judges 
and lawyers see the problems, to learn of any insights they might have about these 
issues, and to find out how open to change they are. 

What crown attorneys think 

Crown attorneys are lawyers who act for the state in the criminal justice process. 
Through the Ministry of the Attorney General, the Province of Ontario employs 
more than 500 full-time crown attorneys and sometimes hires additional lawyers in 
private practice to do this work for a daily fee. Ontario's full-time and part-time 
crown attorneys deal with Criminal Code offences, while lawyers hired by the 
federal government are responsible for the prosecution of drug charges and other 
offences contained in federal laws apart from the Criminal Code. 

As lawyers for the state, crown attorneys "are granted a broad and generous area of 
unfettered discretion,"' which they exercise within a framework of legal rules and 
Ministry policy. This discretion influences many aspects of the criminal prosecution 
process. Crown attorneys may, for example, screen charges to decide which should 
proceed to trial, seek to have an accused detained before trial or establish conditions 
for release, discuss with defence counsel the pleas, facts and sentences to be jointly 
presented in court, and suggest appropriate sentences for convicted persons. 

When exercising their many discretionary powers, crown attorneys face complex and 
conflicting demands. As "effective advocates" for "the active denunciation of 
criminal wrongdoing,"* they must "prosecute vigorously those accused of crime"' 
and "discharge [their] duties with industry, skill and vigour."'" By contrast, as 
"public officer[s] engaged in the administration of justice,"" their role "excludes any 
notion of winning and losing."'^ A crown attorney's duty "is not so much to obtain 
a conviction as to assist the judge and the jury in ensuring that the fullest possible 
justice is done. His [or her] conduct before the court must always be characterized 
by moderation and impartiality." " It is difficult - some have suggested almost 
impossible - for crown attorneys to fulfil both of these roles simultaneously. ''' 
Vigorous advocacy appears to conflict with impartialit)'. Though the expectations are 
stated clearly, the implications for practice are professionally challenging. 

We asked crown attorneys if they think that, "in general, racial minorities are treated 
the same as white people" in Ontario's criminal court system.* 

• The vast majority - three in four (74%) - agree, or strongly agree, that the 
courts generally treat white and racial minority people the same. 

• Only one in eight (13%) disagrees. 



Survey questionnaires were mailed to 483 provincial crown attorneys. After extracting one incomplete response, a 
sample size of 193 was left, a 40 percent response rate. Our Technical Volume contatns further details and a copy of 
the questionnaire. See Appendix B. 



20 SETTING THE SCENE 



We also asked crown attorneys about the extent of such discrimination. 

• Most - three in five (61%) - thinly "discrimination exists, but only in a few 
areas and only with certain individuals." 

• A minority - about one in five (18%) - think "there is no discrimination against 
racial minorities in the Ontario criminal court system." 

• Fewer than one in ten (7%) think "discrimination against racial minorities is 
widespread, but subtle and hard to detect." 

• Only 1% think "discrimination against racial minorities is widespread and easy 
to observe." 



Many crown attorneys responded to our invitation to offer their personal comments 
on racism in the criminal justice system. As might be expected from the answers 
summarized above, most said that, in general, racism is not a problem in Ontario's 
courts. These crown attorneys wrote about - 

• the good faith, education and professionalism of individuals who work for 
justice: 

"Duty and honour are two concepts I sincerely believe are not foreign to the 
performance of one's function as a professional involved in our criminal justice 
system, whether you are a judge, counsel, support staff or police officer. Each 
of these positions are populated in the 1990s by the best-educated people ever. 
Therefore I find it hard to believe that while incidents of racism may occur ... 
they are anything more than rare." 

"My impression of the criminal justice system is that it is not systemically 
racist, based upon my understanding of the term. Neither is the justice system 
rife with racists. By and large, it would appear that most of the participants in 
the criminal justice system are individuals committed to the fair and impartial 
application of the criminal law." 

"Racism in the justice system is far less than in the general population. This is 
perhaps attributable to the fact that by and large the system is populated by 
intelligent and well-educated individuals. I am not aware of a single situation [in 
which] a minority accused was dealt with unfairly by the system simply because 
he/she was a member of that minority group." 

"While I think it is a given that most people in society and therefore in the 
criminal justice system have certain biases, I think that only in a fraction of 
those cases are those biases actually reflected in the treatment of individuals. In 
fact, I think most officers of the courts probably bend over backwards not to let 
any biases they may have negatively influence their conduct, and are conscious 
that it appear that justice is being done." 

"While some individuals in the criminal justice system no doubt harbour racist 
views to some extent, I have never seen an accused, witness or complainant 



Racism in Justice: Perception 21 



receive less courteous treatment or a less fair hearing solely because he or she is 
a member of a racial minority." 

"There are very few racists in the justice system. Most judges, crowns and 
defence lawyers work very hard to do a good job. The level of dedication is 
extraordinarily high [among] all involved. Mistakes are made, but for the most 
part all persons involved in the system are remarkably decent, caring people." 

the lack of opportunity for racism to influence key decisions in the 
treatment of accused persons: 

"Many plea negotiations take place without the crown being aware of the 
accused's race or place of origin. Such issues are irrelevant. Crowns making 
these decisions will often never ... see the accused." 

"When decisions are made in the bail court, there is simply no time at all to 
consider anything other than the offence and the offender's antecedents. The 
colour of a person's skin is never a factor." 

"Prosecutorial decisions are almost exclusively based on 'paper' that reveals no 
racial make-up." 

the influence of factors other than race itself, particularly class or poverty, 
on the treatment of accused persons: 

"Criminal activity is strongly correlated to class, and visible minorities, 
particularly first-generation blacks, are largely poor in relation to the rest of the 
population. They are accordingly over-represented in the criminal courts. Before 
concluding that there is racism in the court system, it is very important to 
compare your minority group stat[istics] with a similarly situated white group in 
terms of all socio-economic data, family background and criminal antecedents." 

"Generally, persons of low socio-economic background have greater problems in 
the system than those of higher socio-economic background. People who have 
been in Canada longer, speak English better, have family, jobs [or] property are 
all treated better than those who do not. However, new Canadians with family 
and community supports and jobs are also well treated .... New immigrants who 
commit criminal offences are not well looked-upon. White and other long-term 
welfare recipients with [criminal] records are also not well treated. There is bias 
in the system. It is not always racially motivated." 

"While I do not have the benefit of statistical data, and my observation and 
views are based upon my own experience and information obtained fi-om others, 
it would appear that racial minority accused are not discriminated against on the 
basis of race but because they are disadvantaged, as whites are, when it comes 
to issues like bail by the fact that they perhaps more frequently lack family 
support, strong community ties and stable employment. These disadvantages 
would appear not to be race-based, but rather a function of the length of time 
the accused has been resident in the community and his or her employability." 



22 SETTING THE SCENE 

'■Race has rarely if ever been an issue in courtrooms .... The true difficuhies our 
middle-class courts have are in dealing with or understanding poverty and non- 
Canadian cultures. The colour of skin is not an issue, or this misdefmes the 
issue." 

Some crown attorneys who think there is no racism in the justice system expressed 
strong disagreement with the Commission's mandate and work. They maintained 
that people who believe there is s>stemic racism in the criminal justice process - 

• do not understand the justice system: 

"The idea that there is widespread racism in the administration of justice is 
patently false. These ideas result from an ill-informed, politically correct 
minority who, I believe, have no experience in the criminal justice system." 

"Whining about supposed discrimination is a waste of time. The suggestion of 
discrimination is unfounded." 

• are making "excuses": 

"Since time immemorial, persons accused of crime have utilized whatever 
means necessary to divert attention from the charges they are facing, and in 
these days of 'political correctness,' bureaucrats have allowed, nay encouraged, 
the view of the forest to be artificially obscured by the trees." 

"The accusation of 'racism' is often used as the last refuge of the scoundrel." 

"It is far too easy in our society to cry 'racism' and not address the real reason 
for which one is in trouble with the law." 

• are following a misguided or illegitimate political agenda: 

"You are creating racism by falsely accusing people of being racist. Racial 
minorities should receive training in Canadianism. You are creating expectations 
that people who come to Canada have a right to their own piece of their old 
country in Canada. This creates and perpetuates racism." 

"From what I have observed, I do not see that racism is as great a problem in 
the justice system as [do] the media and some individuals and self-serving 
interest groups." 

"Those who are the most vocal in the criticism of the judicial system are the 
ones most likely to ensure that what racism there is will continue and perhaps 
increase. These are the persons whose living and standing in the community are 
dependent on finding racism everywhere, for without this spotlight they are 
nothing." 

• have so intimidated judges that the more serious problem today is 
discrimination against white persons: 



Racism in Justice: Perception 23 



"In our jurisdiction there is 'reverse' discrimination ... A white person will get a 
jail sentence for an offence and a racial minority will not, because the court is 
afraid if the person is jailed the court will appear racist." 

Other crown attorneys, however, are convinced that racism is a genuine problem in 
the justice system. They talked about - 

• the subtlety of racism: 

"Overt examples of racism in the criminal justice system are rare. It is the subtle 
examples that are rampant." 

"With respect to the trial process itself, I have found that racist elements tend to 
be very subtle." 

"The only large group of racial minority clients we have here is [from] an 
Indian Reserve. The witnesses are not abused, but they are treated with 
condescension - they are on average less likely to be believed." 

"There are racist comments by police officers ... [but these are] not in my 
experience limited to race. Comments about women or gay people also come up 
.... The defence, crowns and court personnel are too aware to voice similar 
views, but give messages more subtly." 

• the individuals and offlcials responsible for racism in the justice system: 

"Regional directors of crown attorneys set the tone for the office. Wliere they 
fail to establish that racism in whatever form (comments, behaviour, exercise of 
discretion) will not be tolerated, you see an increase in an atmosphere of 
intolerance." 

"Judicial conduct needs to be better scrutinized. Where judges or [justices of the 
peace] make inappropriate comments, etc., the matter should be dealt with. At 
present, although certain individuals are notorious, nothing is done by the 
system. By tolerating their behaviour it is condoned, continues and increases." 

"The legal profession and the criminal justice system take their lead from the 
judges, who rule the courtroom. At both the provincial and general division 
levels, but particularly the provincial division, the bench is saturated with elitist, 
racist and sexist individuals .... Accused persons, victims and witnesses are daily 
subjected to humiliation and degradation at the hands of such judges .... Until 
the courtroom becomes an impartial arena, no amount of education or 
infringement of crown discretion will address the existing racist and sexist 
biases within the system." 

"As a woman and a member of a religious minority ... I have experienced some 
very glaring examples of overt racism and sexism from judges .... But these 
individuals are the minority - most people are very aware of the special needs 
of minority persons and are not racist. In particular, I have found that the police 



24 SETTING THE SCENE 



go out of their way to treat [minority] accused persons fairly in most cases. 
Most racist behaviour, unfortunately, stems from the bench." 

"It is my general impression that the alleged racist bias of police officers is in 
fact exaggerated. It is my general impression that the alleged racist bias of 
certain defence counsel is underrated. By far the most likely of all court 'people' 
to utter racist comments are a minority of vocal defence counsel. The Law 
Societ>' should be sensitized to this problem." 

"1 have heard defence counsel go on in an extremely racist fashion, and it 
disgusts me because these people are their clients." 

What defence counsel think 

Defence counsel are independent professionals who act for persons charged with 
criminal offences. Their main discretionary powers include negotiations with crown 
attorneys about pleas, facts and sentences; development of trial strategy; and 
gathering and presenting information about the accused that might influence 
sentencing. 

In exercising these discretions, defence counsel are guided by the law and practice, 
clients" wishes, and their professional obligations to serve the client and the court 
simultaneously. Their duty to the client is - 

to raise fearlessly every issue, advance every argument, and ask every question, 
however distasteful, which the lawyer thinks will help the client's case; and to 
endeavour to obtain for the client the benefit of every remedy and defence 
authorized by the law.'" 

As these words suggest, defence counsel are largely free, and expected, to advocate 
vigorously on behalf of their clients. But as lawyers, they are also "officers of the 
court concerned with the administration of justice." In this role, the lawyer is said to 
have - 

... an overriding duty to the court, to the standards of [the] profession and to the 
public, which may and often does conflict with [the] client's wishes or with 
what the client thinks are his [or her] personal interests.'* 

We asked defence counsel if they think that, "in general. Black and other Racial 
minorities are treated the same as White people [in] the court system in Ontario."* 

• Five in ten (50%) defence counsel agree that black and other racial minorities 
are treated the same as white people; 

• Four in ten (40%) defence counsel disagree. 



We reached defence counsel through the Criminal L^awyers Association, a voluntary' association of defence lawyers. 
At our request the Association labelled envelopes and mailed questionnaires to SCO lawyers on its membership list. 
Extracting five incomplete responses left a sample size of 343, a response rate of about 43 percent. See our 
Technical Volume for further details and a copy of the questionnaire. 



Racism in Justice: Perception 25 

This question, like many others, prompted different patterns of responses from 
lawyers with substantial racial minority clienteles (40 percent or more of their 
clients) compared with those from lawyers with a smaller proportion of racial 
minority clients. 

• Five in ten (52%) lawyers with larger racial minority clienteles think that black 
and other racial minority people are not treated the same as white people, 
compared with three in ten (34%) defence counsel with smaller racial minority 
clienteles. 

• Four in ten (38%) lawyers with larger racial minority clienteles think black and 
other racial minority people are treated the same as white people, compared with 
six in ten (56%) defence counsel with smaller racial minority clienteles. 

Like the crown attorneys who responded, many defence counsel used the survey as 
an opportunity to offer written comments. Drawing on their experience of the 
administration of criminal justice, some said they do not see any racism in 
Ontario's courts: 

"I have never witnessed any racially motivated differences in how discretion is 
exercised. All have depended on the facts and passed [sic] records - not the 
individual." 

"In 1 7 years of practice representing members of both the majority and ... 
minorities as you have defined them, I have never once seen any racially 
motivated exercise of discretion by either the crown's office or court personnel." 

"My experience has been that accused persons regardless of the[ir] race, ethnic 
origin or background are treated fairly and equally by all in the administration 
of justice." 

"Complaints of racial minorities that they have received discriminatory 
treatment, in my personal experience, have inevitably been the product of 
dissatisfaction with being caught and suffering the penalty - just another reason 
to use to cause the justice system to 'back off their case a touch or completely 

"The courts today are sensitive to the needs of all accused and particularly to 
the perceptions the minorities have of their treatment. I ... see little evidence to 
indicate minorities are subjected to prejudice, bias or slurs of any kind. The 
system ought to be proud of this general appearance of fairness and respect for 
all who come before the courts." 

"So far as judicial proceedings are concerned, I believe there is no evidence of 
systemic racism in the Ontario criminal justice system." 

"This Commission is virtually a waste of time and money, as I perceive there to 
be no racism ethnically in the judicial process. The only obvious prejudice that 
exists is against white Anglo-Saxon males." 



26 SETTING THE SCENE 



"My observation: you are investigating a non-existent problem. My prediction: 
you will recommend an elaborate set of measures to deal with the [non-existent] 
problem." 

Other lawyers clearly had different experiences with the administration of criminal 
justice. They talked about - 

• subtle biases against racial minority clients: 

"The system - from police through to crowns - has targeted minorities with a 
broad brush. More difficulty arises for defence counsel in presenting the 'human 
being' to them when the client is a member of a racial minority." 

"One never discusses racism but- it is clear that issues such as credibility, guilt 
beyond a reasonable doubt, and innocent till proven guilty become unclear if 
your client is black or yellow. The problem is not only police- and crown- 
related." 

"The problem is not that judges are overtly discourteous to non-white 
participants. The problem is that they are less likely to believe them. Again the 
relevant factors are intangible: the empathy and identification factors are 
lacking." 

"Very little of the real racism is blatant. Racial minorities know they are treated 
unfairly. But the unfair treatment is not consistent throughout the province." 

• the exercise of discretion: 

"The ubiquitous exercise of so many discretions - which permeate the system 
from arrest through incarceration - permit the free play of racial stereotyping 
and prejudice in so subtle a manner as to make it elusive .... Ontarians must be 
persuaded of the subtle forms of racism as opposed to thinking of racism as 
gross and exaggerated displays by extremists." 

"There is a bias with some judges against racial minorities when it comes to 
judicial interim release [bail]. They take that long look at the accused in the 
dock and, in the final analysis, it comes down to an [exercise] of discretion 
based on submissions and intuition. Too often, 1 feel, intuition is a cover for 
institutionalized discrimination. I have even heard judges give voice to that 
discrimination in a way which was supposed to be humorous." 

"Assumptions are made by police, crowns and judges that certain racial 
minorities are more likely to be guilty of certain categories of offences, and 
discretion is exercised or restricted accordingly." 



Racism in Justice: Perception 27 



stereotyping of persons from racial and ethnic minority communities: 

"Comments often flow from crowns and police officers re various communities 
and stereotypes - e.g., Jamaicans, Portuguese." 

"Judges are more likely to stereotype minority accused in the questions, 
comments and findings of fact than to make overt comments, although they do 
that as well." 

racist conduct behind closed doors: 

"Pressure placed on defence counsel in back-room dealings provides cover for 
racist attitudes of the judiciary. If more were done in open court, either a judge 
would have less opportunity to give effect to the racism or it would become 
apparent on the record." 

"I am often appalled that judges, crowns, police officers and even defence 
counsel assume they are speaking to someone who agrees with their racist point 
of view." 

"Police attitudes are the worst. Many officers with racist attitudes have learned 
over the last few years to 'conceal' this unless among people they consider to 
share similar views. It's very instructive to share a coffee with a few officers 
and to pretend to be 'one of the boys' and then listen to the racial invectives 
spewing forth. It's harder to detect now, but the mindset has changed very 
little." 

the responsibilities of police officers, judges and to a lesser extent crown 
attorneys and defence counsel for racism in the criminal justice system: 

"In many cases I have had, I am sure the police would not have charged the 
person if the person was white. It seems to me that the police are more willing 
to resolve disputes (assaults, theft, threatening) [without] charges being laid if 
the person is white. I often think my clients should enter a guilty plea to being 
black, as that is really why they are in court. To me, it is the racism of the 
police in exercising their discretion which must be examined. Giving blacks 
criminal records seems to be the goal of too many police officers." 

"The biggest problem with racial discrimination in the criminal justice system 
lies in the original laying of the charge - i.e., the police. They seem to pride 
themselves on being experts about the 'way of life' of particular races and areas 
of the city. They typically do not use discretion in laying charges, particularly 
with Jamaicans, Afro-Americans and Portuguese." 

"Any racism that exists in the courts is, in my view, mostly related to the 
manner in which police investigate and arrest members of the community, the 
charges they lay and the police recommendations for the detention of the 
accused and/or bail conditions to be requested if accused is released. More and 
more racial minority accused advise counsel they have been hassled and at times 
abused for no reason, they have been searched illegally, [or] they have been 



28 SETTING THE SCENE 



denied their rights to retain and instruct counsel without delay; and a sizeable 
number insist that the police have planted drugs on them. I realize that some 
allegations of maltreatment by police could well be fabricated, but the 
allegations occur in patterns with the same officers, and [are] so similar in detail 
that it is difficult to discount the majority of these claims." 

"In general the police treat my minority clients differently. The police single out 
minority accused. The police lay charges. The police suggest conditions upon 
release that are impossible for an accused to meet, or [recommend] no release. 
The police fabricate circumstances on the synopsis' to aggravate a possible 
release situation. The police show up at more minority bail hearings to give 
'valuable' evidence. The same officers attend at pre-trials and often hinder 
possible resolution. More of my visible minority clients are beaten by the 
police. A large number of my visible minority young offenders and their 
families are less educated and less aware of their rights. The police take 
advantage of this ignorance." 

"If there is significant discrimination against minorities, it is worst against 
blacks. Police have a perception of the black community as a criminal sub- 
culture ... Mercenary, high-volume legal aid defence counsel are even less likely 
to be concerned for the rights of black clients if those rights get in the way of 
expediency and a fast buck." 

"Judges seem to me the worst offenders. Perhaps part of it is that, burdened 
with a multi-trial list, they have no patience or courtesy to spare for those who 
have difficulty making themselves understood. While many (crowns and judges) 
are pretty even-handed with respect to complainants, there is less tolerance for 
minority defence (as opposed to crown) witnesses and far less for minority 
accused. Maybe this is just part of the general contempt for the accused and 
his/her witness that I find almost commonplace in the courtroom .... (regardless 
of race)." 

"Most judges do not see colour, but some do. Get rid of the bigots! Better 
appointments, based on merit not race, etc., is the way to go. Good judges treat 
each person the same." 

"Generally speaking, I do not see any racist behaviours by judges and court 
staff On the other hand, I do see racist attitudes and behaviour by police on a 
routine basis. Judges often become irritated with West Indian witnesses because 
the judges are unable to understand the accent. It would be a good idea to 
introduce programs to educate justice system personnel to West Indian culture ... 
Police probably reflect racist attitudes in society .... The police seem to be the 
main problem with racist behaviour and attitudes." 

Several defence lawyers perceived systemic biases in the justice system and the 
vulnerability of racial minority accused to these biases, but said disadvantageous 
treatment is mostly or really due to reasons other than race: 



The synopsis is a written summary of the case and the baclcground of the accused, prepared by the police 
Immediately after arrest. It is intended to assist the crown attorney who will conduct the bail hearing. 



Racism in Justice: Perception 29 



"I think racism plays only a small part ... The greater problem is class. Those on 
welfare, [the] unemployed, [the] underemployed or [those] on government 
benefits fare poorly." 

"Discretion seems largely to depend on economic factors - poor accused, 
whether or not they are minorities, seem to be treated alike - increased police 
suspicion and surveillance, more charges, less discretion. Middle-class or high- 
income minorities tend to be treated as well as middle-class whites. Discretion 
and much of the other aspects correlate more closely with economic factors than 
race, although some may confuse hostility towards the former for hostility to the 
latter." 

"The differences seem to me very much 'systemic' - that white accused are able 
to show more often than racial minorities those things (wealth, employment, 
drug rehabilitation, family support, community support, etc.) which impel 
crowns, police and judges to extend bail or sentencing leniency. Class biases 
overlap with racial biases." 

"I do not think the issue is the bias of the individuals who work in the system. 
The bias [is] in the system .... In other words, a white or black from the 
'projects' gets a bad shake in court, not because he is white or black, but 
because he is from the projects." 

"There is a strong tendency for crowns and police to develop racial/ethnic 
animosities. I suppose the nature of the job attracts certain authority types and 
that the pressure leads to frustration. The end result is that lower S.E.S. [socio- 
economic status] groups are condescended towards. Wealthy, white anglos are 
better treated. Poor, uneducated immigrants are at the lowest end. I think race is 
not as big a factor as income level and language skills." 

"Poor people are ... disproportionately black, and poor people are often before 
the criminal courts. The reasons involve cultural issues as well as some level of 
systemic racism, both in our society and in the police. I see systemic racism less 
in our courts than elsewhere in our society." 

"Class and income play a part in determining who comes before the courts. That 
should be the subject of consideration. One cannot point to a percentage of 
'minority' accused and say this is racism. The issue is more complex. Social 
structure must be addressed." 

What judges think 

Ontario's criminal trial judges are former lawyers called to a provincial bar for at 
least ten years before their appointments. As judges they may be members of the 
General Division or the Provincial Division of the Ontario Court of Justice. Judges 
who sit in the General Division are federally appointed, while appointments to the 
Provincial Division are Ontario's responsibility. 

Judges may participate in pre-trial meetings with crown attorneys and defence 
lawyers at which agreements are sometimes made about which issues will be 
contested in court. They are responsible for ensuring that trials are fair, for 



30 SETTING THE SCENE 

convicting or acquitting accused persons, and sentencing people convicted of 
criminal offences. In fulfilling these roles they exercise discretion. 

Although these general functions are the same for all trial judges, there are 
important differences in the roles of general and provincial division judges in 
Ontario's criminal justice system. For example, only provincial division judges 
conduct preliminary inquiries. They also conduct trials without juries, while general 
division judges may conduct trials with or without juries. In addition, provincial 
division judges conduct trials of youths aged 12 to 17 charged with any criminal 
offence. By contrast, general division judges try only youths aged over 14 charged 
with very serious offences, and only if a judge has decided that the accused should 
be tried as an adult. 

We asked judges if they think "in general racial minorities are treated the same as 
white people in Ontario's court system."' 

• The majority of provincial division judges - about three in five (64%) - and 
general division judges - three in four (72%) - agree that the courts generally 
treat white and racial minority people the same. 

• One in five (19%) provincial division judges and one in ten (10%) general 
division judges disagree. 

We also asked judges if they think "systemic discrimination is a serious problem in 
[Ontario's] criminal justice system." 

• One in four (25%) provincial division judges, but fewer than one in ten (7%) 
general division judges, agree that systemic discrimination is a serious problem 
in the criminal justice system. 

• About five in ten (45%) provincial division judges and three in four (76%) 
general division judges disagree. 

These questions, like many others in the survey, prompted different patterns of 
responses from provincial division judges appointed before and after important 
changes were made to the appointment procedures. The new process, intended to 
eliminate any suggestion of patronage:'^ includes people who are not lawyers, judges 
or politicians in selecting new judges; affirms the merit principle as the main 
qualification for appointment; introduces clear, public criteria for evaluating 
candidates; and considers diversity as a factor. Using as our dividing point 1989, the 
year in which the changes were introduced, we found - 



The survey was mailed to every general division judge on a mailing list given to the Commission by the office of 
the Chief Justice - 253 names in total. Responses were received from 137, a response rate of 54 percent. Of the 265 
surveys mailed to provi.icial division judges, on a mailing list given to the Cotrmission by the office of the Chief 
Judge, 121 were returned - about 46 percent. Our Technical Volume contains further details and a copy of the 
questionnaire. See Appendix B. 



Racism in Justice: Perception 31 



Judges appointed under the new system are much more Hkely than their longer- 
serving colleagues to think there are racial differences in how people are treated 
in the courts. One in three (33%) of the more recent appointments, compared 
with one in ten (10%) of the longer-serving judges, disagree that white and 
racial minority people are treated the same. 

Judges appointed under the new system are much more likely to think there is 
systemic racism in the criminal justice system than their longer-serving 
colleagues. Close to two in five (37%) recently appointed judges, but fewer than 
one in five (16%) longer-serving judges, agree that "systemic discrimination is a 
serious problem in the criminal justice system." 

Judges' comments raise similar themes to those of crown attorneys and defence 
counsel. The dominant view, especially among general division judges, is that 
concerns about racism or any other form of discrimination in Ontario's courts have 
no basis in fact. Judges said - 

• there is no evidence of discrimination in the courts: 

"Counsel, prosecutors [and] court personnel tend to treat users of the justice 
system alike. 1 have seen no evidence of unequal treatment over a 33-year 
career as a lawyer and a judge." 

"I strongly disagree with those who allege there is systemic discrimination and 
racism in the court system in Ontario. There will always be anecdotal statements 
to this effect, but the hard evidence is exactly to the contrary. My extensive 
experience is that judges, lawyers and court personnel treat all people coming 
into conflict with the law in the same way." 

"My experience is that the court is colour-blind. For the most part I can 
honestly say that minority parties have been treated no differently than any 
other by judges, juries, courts staff, lawyers, etc." 

"In 21 years as a judge, I have seen no racial discrimination in the courts nor in 
the verdict[s] of juries .... My experience, and that of judges I have talked to, is 
that racial discrimination does not exist in the courts." 

"I have seen absolutely no evidence of any distinction between the way in 
which what you call 'racial minority' persons are treated, and the treatment 
given to what you call 'whites'." 

racial minority individuals tend to receive better treatment than white 
individuals in Ontario's courts: 

"99% of judges, counsel and court staff bend over backwards to be fair and not 
to appear racist. [They] often give non-whites more courtesy and consideration 
than whites." 



32 SETTING THE SCENE 



"The fact is that certain racial minorities are given consideration that takes into 
account, in a way beneficial to the [racial minority] accused, the disadvantage 
generally experienced by that group." 

"The individual needs of individuals are being addressed, and frequently I see 
greater efforts by court staff and crowns to accommodate the needs of those 
who don't appear to understand the process than would be made for an 'average' 
person. This means frequently that poorer or less-skilled or more recently 
arrived persons get better treatment, and frequently the beneficiaries are 
members of a 'racial minority.' If it didn't work that way in my Court, I'd make 
it work that way!" 

"My general experience is that ... both judges and juries give members of racial 
minorities leniency as opposed to similarly placed accused from non-racial 
minority segments of the population. In effect they over-compensate for the 
perception that they may be prejudiced." 

"Most courts now are trying to be very careful not to be biased - possibly even 
leaning over the other way, which is equally unfair." 

"In the area where I preside, it is relatively rare to see an Oriental or black 
person in court. When they are present, the court staff and counsel appear to me 
to be more accommodating to them than to white persons." 

allegations of racism are excuses for criminality: 

"Too many ethnic groups cry racism! And totally ignore the fact that their 
particular group is in fact committing a disproportionate number of serious 
crimes in a particular area." 

"The perception of unfair or unequal treatment of racial minorities is due to the 
disproportionate numbers who are brought into the system. The factors which 
bring them before the system are economic, social and cultural. Deal with the 
root causes and stop pointing the finger of blame at the people who are 
seriously trying to enforce the law .... Our courts attempt to serve with 
scrupulous fairness." 

allegations of racism - and the work of this Commission - reflect a 
misguided political agenda, rather than a genuine problem in Ontario's 
justice system: 

"I do not agree that minority persons are badly treated in the provincial courts. 
As part of their defence 'posture,' minority persons frequently attempt to skew 
the case into racial lines. The socialist government has unfortunately encouraged 
this stratagem. The fault is not so much with the minority witnesses so much as 
it is in [members of] the left-liberal establishment [who] to perpetuate their own 
importance as 'activists' encourage the very idea of racial inequality in the 
courtroom. The vast majority of players in the system bend over backwards to 
be fair and just to minorities as a matter of patriotism and personal decency." 



Racism in Justice: Perception 33 



"This entire exercise is driven by an overreaction to a small segment of the 
population who would complain about the conditions in heaven. Not to say we 
should be complacent or over self-congratulatory; but come on - is it [so] bad 
that we should throw so much tax money away on yet another commission, 
study and survey? Wake up and smell the coffee!" 

"The very existence of this Commission, its mandate and terms of reference, 
promotes rather than discourages racism .... Any recommendations which 
require us to look at and deal with apparent difference[s] will further promote 
racism." 

"! anticipate that the Commission, driven by the force of political correctness, 
will find that racism is rampant in the justice system .... a conclusion that will 
not be based on hard evidence but, like Stephen Lewis' letter, on anecdote and 
unsubstantiated complaint. Failing all else the Commission will find invisible 
racism - visible only to the Commissioners." 

By contrast, some judges said racism and other foims of discrimination are a reality 
in the administration of justice: 

"If it's not discrimination against colour, it's discrimination against the poor, the 
underprivileged and the weak. We go to great lengths to try to justify our 
positions, yet we all suffer from the same common denominator - prejudice - 
and we're not prepared, as a society, to do anything about it." 

"1 am of the view that there exists systemic racism in the Ontario court system. 
While many might disagree, awareness programs for those involved in the 
administration of justice would likely help eliminate the unconscious 
discrimination. I'm sure many of us, from court personnel to judge, discriminate 
without being aware of it. Stereotyping is a strong influence we surely suffer 
without knowing. To a certain extent the more we are exposed to these 
minorities, the more we can understand." 

"My experience has been that we are all - whites, blacks. Oriental, etc. - racist 
to some degree. We are all more comfortable, other things being equal, with 
people who are like ourselves. I witnessed black and Oriental (Asian) racism 
when 1 worked in an African country when I was younger. I have certainly seen 
white racism in its more negative forms. Consequently any training which helps 
to sensitize us to the 'other' and his or her fear and biases or perceived biases 
cannot but help us to avoid misconceptions and problems in dealing with races 
different from our own. Talking about these problems is a good thing even if it 
is sometimes unpleasant." 

"If most of the faces you see are black, there is a temptation to think there is a 
problem with that community. This would explain the attitude of some judges 
and crowns. The problem is the police. The police are homogeneous, closed 
[and] resistant to change ... Not all police are racist but a substantial portion are. 
There are lots of influences on judges and prosecutors to reduce racist attitudes 



34 SETTING THE SCENE 

Summary of judges' and lawyers' perceptions 

These findings make two important points. First, tliere is substantial variation among 
justice professionals in their perceptions of racial discrimination in Ontario's 
criminal courts. Significant proportions of defence lawyers and recently appointed 
judges of the provincial division think the criminal justice system does not treat 
white and racial minority accused the same. However, only about one in ten crown 
attorneys, general division judges and provincial division judges appointed before 
1989 share this view. 



Figure 2-3: Percent of judges and lawyers who think 

white and racial minority accused are not treated the 

same in Ontario Criminal courts 


General div. judges 


^ 


10 


P. judges: pre-1 989 

Crown attorneys - 
P. judges: post-1989 
Def: < 40% rm clients 
Def: > 40% rm clients 
C 


^M 


10 


^^^^|l3 


^H^^HJI^^^^^I 33 


^HHHH^^^^^I 34 


^^^^^HH^^^^^^^^^^^H 52 


10 20 30 40 50 60 




Percent of respondents 


P. judges: pre-1 989 - provincial division judges, pre-1 989 appointments 

P. judges: post-1989 - provincial division judges, post-1989 appointments 

Def: > 40% rm clients - defence counsel with more tfian 40 percent racial minority clientele 



That judges and lawyers by no means speak with one voice shows that these justice 
professionals are not a homogeneous group. Though they may have a common 
interest in how the justice system is perceived, they have different views about the 
extent to which racial discrimination permeates Ontario's criminal justice system 
today. 



Second, as the quotations from the surveys illustrate, many justice professionals 
reject - some flatly - even the possibility that systemic racism might be a genuine 
problem in Ontario's criminal courts. For some, the rejection of racial bias is but a 
part of their belief that the criminal justice system treats everyone the same. Others, 
however, acknowledge differential treatment based on class or poverty even as they 
reject the suggestion of racial discrimination. 



Racism in Justice: Perception 35 

Many of the survey comments suggest that class or income bias, though it may be 
regretted, is inherent in Canadian society and may be transmitted into the court 
system through the workings of other social institutions, such as the education 
system and labour markets. Class or income bias is not perceived to be caused by or 
the fault of justice professionals, nor is it necessarily influenced by dislike of poor 
people. Since the existence of class or income bias is not thought to reflect badly on 
individual judges or lawyers, it may be easier for justice professionals to 
acknowledge this problem without feeling personally responsible for it. 

By contrast, many of the survey comments tend to treat any suggestion of racial bias 
in the court system as an attack on the personal integrity of the respondents. This 
response suggests that racial bias is understood to mean deliberately unfair 
decisions, made by specific individuals and motivated by negative judgments about 
races. There seems to be an attitude that somehow the legal system is immune from 
the consequences of racial inequality in Canadian society. Even when judges and 
lawyers are confident that their own conduct in the daily administration of criminal 
justice is beyond reproach, they seem to feel implicated when the integrity of the 
justice process is challenged. This narrow view - that any racial bias in the courts 
must reflect deliberate wrongdoing - has led to indignant denials of a general social 
or cultural problem that is endemic in Canadian society. 

It is important to understand adverse consequences of racism even when they do not 
result from unfair motives. These more subtle forms of racism require greater effort 
to identify and eliminate. Co-operation and initiative from those most directly 
involved in the criminal justice system will be crucial to achieving the perception as 
well as the reality of true equality in Ontario's criminal justice system. 

Conclusion 

The Commission's findings show the importance of restoring public confidence in 
the criminal justice system's commitment to equality. We must not rest content that 
many residents of Ontario's largest and most racially diverse city appear to agree 
with a participant at one of the Commission's public forums who said: 

"We have two systems of justice within the criminal justice system. One is for 
the majority group in our society - people who have money, connections, etc. - 
and the other is for the racial minorities." 

Much criticism has been levelled against some members of Ontario's black 
communities for articulating concerns about racism within the system. These 
individuals have been dismissed as unrepresentative and described as speaking only 
for themselves. The Commission's findings show that a large proportion of black 
Torontonians - who comprise just over half of all black Ontarians - appear to have 
little confidence that the criminal justice system delivers justice equally. Many white 
and Chinese Torontonians share this view. 



36 SETTING THE SCENE 

The Commission's findings also show that justice system officials are divided over 
whether the criminal justice system delivers equal justice to residents of Ontario. 
The findings suggest that a substantial proportion of all respondents feel that 
discrimination is common. 

These findings should not be dismissed as attacks on the criminal justice system by 
those who do not understand it. They are a call to respond to the concerns raised, 
and to use available resources to improve and deliver what is now seen as only a 
promise of equality. 



Racism in Justice: Perception 37 



Endnotes 



Hon. Charles L. Dubin, Chief Justice of Ontario, "The Future of Our Profession and of Our 
Justice System," The Law Society Gazette vol. 28 (1994), pp. 203^. 

Earl Babbie, The Practice of Social Research, sixth edition (Belmont: Wadsworth Publishing 
Company, 1992). 

^ Castor F. Williams, "Sentencing - Blacks in Nova Scotia," prepared for the Nova Scotia 
Judicial Education Seminar, Feb. 20-22, 1992 (on file), pp. 7-8. 

Statistics Canada 1991 census, special tabulation for the Commission (manuscript on file). 

' Mr. Justice Henry Brooke, "The Administration of Justice in a Multicultural Society," Kapila 
Lecture by the chaimian of the Ethnic Minorities Advisory Committee, Judicial Studies 
Board, United Kingdom, Nov. 18, 1993 (manuscript on file). 

'' Province of Ontario, Attorney General's Advisory Committee on Charge Screening, 
Disclosure and Resolution Discussions, Report, chair G.A. Martin, {"Martin Report) 
(Toronto: Queen's Printer for Ontario, 1993), p. 26. 

'' John Clement, former Attorney General of Ontario, in a 1975 speech, quoted in Phillip C. 
Stenning, Appearing for the Crown (Cowansville, Que.: Brown Legal Publications Inc., 
1986), p. 311. 

^ Martin Report (note 6), p. 32. 

Province of Nova Scotia, Royal Commission on the Donald Marshall, Jr. Prosecution, 
Findings and Recommendations, report vol. 1 (Halifax: 1989), p. 241. 

'" R. V. Scnnon and Mizrahi (1980) 52 C.C.C. (2d) 276 at 289 (Ont. C.A.) per Zuber J.A., cited 
in Martin Report (note 5), p. 3 1 . 

" Ibid. 

'^ Boucher v. The Queen (1959) 1 10 C.C.C. 263, per Rand J. at 270. 

'^ Ibid., per Taschereau J. at 267 (translation). 

''' J. A. Sutherland, "The Role of Crown Counsel: Advocate or Minister of Justice?" (LL.M. 
thesis. University of Toronto, 1990). 

'^ Commentary to Rule 10 of the Law Society of Upper Canada, Professional Conduct 

Handbook (Toronto: Law Society, 1978), para. 2, adapted from Rondel v. Worsley [1969] 1 
AC 191 at 227-228, cited in Martin Report, p. 30. 

Rondel v. Worsley, ibid. 

" Attorney General Ian Scott, Ontario Legislature Debates 6835 (Dec 15, 1988). 



Chapter 3 

Racism in Justice: Understanding 

Systemic Racism 



This chapter introduces the understanding of systemic racism on which the 
Commission bases its Report. We spell out the elements of systemic racism in some 
detail because our consultations and submissions revealed widespread confusion 
among Ontarians about this fundamental aspect of our mandate, and also because of 
the denial and defensiveness evident in some responses to Commission surveys (see 
Chapter 2). Our definition of systemic racism attempts to establish a common 
understanding of the nature of the issues being addressed. 

In order to do justice to the complexities of systemic racism, our definition relies on 
terms that may be unfamiliar to many people. We use these terms because they 
allow us to describe systemic racism in a comprehensive and precise manner. 

By systemic racism we mean the social production of racial inequality in decisions 
about people and in the treatment they receive. Racial inequality is neither natural 
nor inherent in humanity. On the contrary, it is the result of a society's arrangement 
of economic, cultural and political life. It is produced by the combination of: 

• social constructions of races as real, different and unequal (racialization); 

• the norms, processes and service delivery of a social system (structure), and 

• the actions and decisions of people who work for social systems (personnel). 

The discussion begins with racialization, the driving force of racial inequality. Next 
we show how the elements of operating norms, decision-making processes and ways 
of delivering services may incorporate racialization in systemic practices and may 
support, transmit or tolerate it. We also examine the role of the personnel within this 
structure and how they affect its processes. Finally, we briefly describe some ways 
of recognizing systemic racism. 



39 



40 SETTING THE SCENE 



Racialization: the driving force of racial inequality 

Racialization is the process by which societies construct races as real, different and 
unequal in ways that matter to economic, political and social life. ' It involves - 

selecting some human characteristics as meaningful signs of racial difference; 
sorting people into races on the basis of variations in these characteristics; 

• attributing personality traits, behaviours and social characteristics to people 
classified as members of particular races; and 

• acting as if race indicates socially significant differences among people. 

Through these processes of selection, sorting, attribution and action, racialization 
creates, sustains and promotes the idea of race - humanity's "most dangerous 
myth."^ Races are a product of, or created by, racialization. Without racialization 
they would not exist. 

Race is a myth because it is impossible to sort humanity into distinct racial groups 
using any scientific standard. ^ Variations among human beings do not form regular 
patterns that allow objective classification of people into different races. Whatever 
criteria are used to assign people to a racial category - such as skin colour, hair 
form, nose shape or height - the evidence shows, conclusively, that similarities 
among many people placed in different racial groups are greater than among 
members of the same groups. Moreover, supposed indications of race neither cause 
a person to behave in predictable ways, nor do they reveal anything about the 
person's character. The very idea of race is a myth, both because racial categories 
have no basis in fact and because these socially constructed categories do not 
explain skills, talents, personalities or behaviours of individuals. 

To recognize that race is a myth is not to deny the power of racialization. Even 
though science cannot offer any coherent basis for dividing humanity into races, the 
systems adopted by societies may reflect or incorporate racialized judgments. 
Sometimes racialization is explicit, official and supported by law. The former 
apartheid regime in South Africa, the regulation of Aboriginal peoples by Canada's 

Indian Act, the laws of Nazi 
Germany, the wartime internment 
of Japanese Canadians, and the 
denial of civil rights to black 
Americans in the southern United 
States are all examples in recent 
history of openly racialized 
systems. 



This minute from a 1951 meeting of a committee 
responsible for approving immigration applications 
to Canada shows hew officials may make fine 
distinctions based on inherited physical 
characteristics; 

[T]he Committee noted that while from her 
photograph ... [she] has characteristics 
of the negroid group, available evidence 
indicates her negro origin steins solely 
from her great -grandmother. The Committee 
approved . . . admission. 

(Departmental Advisory Committee on Irani grati on. Minutes. 
36th meeting. Aug. 20. 1951. cited in Satzewich. Racism and 
Foreign Labour (note 1).) 



Racialization also can be active 
where it is not part of the law and 
even where laws attempt to 



Racism in Justice: Understanding Systemic Racism 41 



The following quotdlions illustrate hew 
Canadians in the 19th century used place of 
origin to label some Europeans as undesirable: 

The United States are welcome to the 
Hungarians. Poles. Italians and others 
of that class: they are. as a rule, 
wretchedly poor, make very poor 
settlers and bring with them many of 
the vices and socialistic tendencies 
which have caused such trouble to 
their hosts already. Renewed efforts 
should ... be made by our government 
to induce more of the hardy German and 
Norwegian races to remain here. 



(cited in Berger. 
147.) 



The Sense of Power: (note 18) p. 



... [T]he Irish papists come in swarms 
on the whole to do us evil . . . .[The 
Irish] increase taxation for the poor. 
They render necessary a strong police. 

(George Brown, editor. The Globe. 1866. cited in 
Robert F. Harney, ed.. Gathering Place: Peoples and 
Neighbourhoods of Toronto. 1834-1945 (Toronto: 
Mult'cultjral History Society of Ontario. 1985).) 



prohibit it. Racialization can still 
have powerful effects where it is only 
an implicit an(i unofficial feature of 
the system.'' 



Where racialization is implicit and 
unofficial, it is revealecd by what 
people do and how institutions 
function. Routine decisions and 
actions may indicate that people 
perceive races as real and take racial 
labels seriously. Their conduct may 
reveal assumptions that people they 
place in the same racial category 
share experiences, attributes and 
characteristics. They may treat race as 
a meaningful sign of difference, a 
reason for their decisions or an 
explanation of inequalities in their 
world. Racialization is active in any 

social system in which people act and institutions operate as if race represents real 

and significant differences among some human beings. 

Signs of racial difference 

Racialization, like any other process that relies on classification, needs a sign of 
difference to sort people into categories. Notions of "origin" do this work, setting 
the boundaries between different races and defining group membership. Signs of 
origin indicate who should be categorized into which racial group. 

Inherited physical characteristics are the main signs of origin used to determine 
racial group membership. But some aspects of physical appearance are not used. 
Hair texture is relevant, but foot size is not. Skin colour matters, but not eye colour. 
The shape of the nose counts, but not the size of the ears.' 

Inherited physical characteristics are not the only signs of origin. Ethnicity, culture 
and place of birth are also used to create racial groups. Traditionally, these signs of 
origin have been used to racialize people of European origins or appearance. But 
such judgments about which ethnicities, cultures and places of birth count as signs 
of racial difference and which ones indicate sameness have varied over time and in 
different regions. While some of these racial categories remain socially significant, 
others are at present inconsequential. 



Ethnicity, culture and place of birth are taking on new roles in modem racialization 
processes. Pseudo-scientific and racist theories that claim inherited physical 
characteristics account for character, capacity and behaviour have been completely 
discredited;* accordingly, racialization by appearance is much less acceptable in 



42 SETTING THE SCENE 

public or in polite society than before. This shift in what people feel able to say 
does not stop them racializing others, but it does affect their vocabulary. Hence, less 
is said about skin colour, hair texture and shape of noses, but more is said about 
ethnicity, place of birth and culture as signs of origin. 

[A Canadian immigration official says] Canadians uncompromisingly reject a 
race-based immigration policy, but are clearly imcomfortable with the shift from 
European to Tliird World source coimtries .... A belief tliat Canada is accepting 
too many immigrants from ethnic minorities appears to be hardening.' 

All racialized societies use signs of origin to indicate racial difference, but they do 
not always formally classify everyone into racial groups. The "Negro schools laws" 
of Ontario and Nova Scotia, for example, created separate education systems for 
black children. "* But the laws did not refer to the signs of origin of other children or 
attempt to classify them into distinct racial groups. From the perspective of these 
laws, other Canadian children were not racialized. 

Such uneven uses of signs of origin are particularly common in societies where 
racialization is mainly implicit and unofficial. In these societies the cultural 
traditions of the dominant group set the standards from which other racial categories 
are distinguished. Members of the dominant group often do not think of themselves 
in racial terms; they apply racial labels only to people who are "different."' For 
example, many white Canadians do not ordinarily think of themselves as members 
of the white race, but they identify black, Asian, South Asian and Aboriginal 
Canadians as racially different from an unstated norm. In other words, whiteness is 
invisible but the signs of origin of other races are not. 

Meanings of racial difference 

Why are racial differences significant? Racialization attaches meanings to racial 
differences stemming from the historical origins of the racialization and the purposes 
for which it is used. These meanings of racial difference, like the signs of racial 
difference, may change over time and vary from place to place. But the judgments 
and assumptions tend to take the same form whatever the era or place, and much of 
their historical content lives on in contemporary social systems. 

Judgments and assumptions about racial differences generally take the form of 
hierarchical or graded comparisons. In Canada these meanings are based on 
perceived relationships between the skills, characters and capacities of white people 
and those of people defined as racially different. Sometimes the comparison is 
explicit. For example, a 1989 study found that one in six of "elite" Canadians and 
almost two in six Canadians in general believe that "races are naturally unequal." '° 
Clearly, this question required respondents to compare racial groups and at least 
implicitly suggested ranking them according to the perceived capacities of their 
members. 



Racism in Justice: Understanding Systemic Racism 43 

Often, however, the comparison is unstated. But even then, the meaning of racial 
difference involves judgments about the characteristics or qualities of differing 
groups. Thus white people who do not think of themselves as belonging to a racial 
group may judge others as different by reference to a standard that is implicitly 
white. 

The dominant meanings of racial differences in Canada arise from two important 
systems: imperialism and immigration. In both systems these meanings have 
functioned to rationalize unequal treatment of human beings. 

European empires of the 16th and 17th centuries used racial difference to justify 
exploitation of the people, lands and resources of other societies. * In this process the 
elites of England, France, Spain, Portugal and the Netherlands defined members of 
the societies they exploited as inferior, savage and strange, and themselves as 
superior, civilized and normal. They made these meanings socially significant by 
organizing societies they colonized on the basis of these meanings. The imperial 
powers also used these meanings to justify enslaving African peoples and 
transporting them to the Americas. 

As well as justifying economic exploitation, these meanings of racial difference 
were incorporated into European imperial societies through religion (predominantly 
Christianity), education, culture and politics. By imposing elements of their domestic 
systems on the societies they colonized, the European imperial powers spread the 
meanings of racial difference. 

Today, these meanings are well established in many societies, including Canada. 
They may result in racial inequality in social systems and be expressed in racist 
incidents. As recently as 1989 a federal government report concluded that "racism 
and racial discrimination are facts of life in Canada," after finding - 

... clear evidence that a significant number of Canadians have racist attitudes or, 
as one poll concluded, 'are racist in their hearts." Such attitudes have resulted in 
actions ranging from name-calling and threatening gestures to writing hate 
propaganda directed at a specific racial group, damagmg property or physical 
violence." 

In 1993 the Ontaiio Court of Appeal, after an extensive review of the evidence, 
concluded that "racism, and in particular, anti-black racism is a part of our 
community's psyche."'^ 

First Nations people of Canada experienced the full force of imperial colonization. 
The elites of Britain and France seized their lands, defined them as inferior and 
made them adapt what were called their "uncivilized" cultural practices and 



Other imperial traditions have also constnicted people as diileienl to justify exploitation, but the European imperial 
tradition is the most relevant to the meanings of racial differences in Canada. 



44 SETTING THE SCENE 



"inefficient" economic arrangements to 
European standards.'" 

Britain and France also brought Afiican 
slaves to Canada (but slavery was never 
practiced on a large scale in this 
country, for economic reasons).''' Some 
white Canadians protested against 
slavery, campaigned vigorously for its 
abolition and assisted American slaves 
who escaped from the United States.'^ 
However, many others believed that 
African people were inferior to 
European people."' This belief continued 
to be expressed publicly after the United 
States officially ended slavery, by 
Canadians who thought black Americans 
caused problems for white Americans 
and who were determined that Canada 
should be a white country. For example, 
a 1906 editorial in Saturday Night 
magazine said - 

This will only be a white 
man's country if we make it 
so. It was once ranged by red 
men, but we took it from 
them, and it is ours, if we can 
keep it .... Tlie Chinese ... are 
an inferior race of men like 
the Africans who were 
brought over in thousands to 
the southem states and now 
constitute a serious and 
permanent danger to the 
neighbouring republic. '^ 

Comparing Canada to the United States, 
Sir George Robert Parkin, the author of 
school texts and principal of Upper 
Canada College in the early 20th 
century, stated, more simply: "What a 
mercy it is to be free from this frightfixl 
black problem."'* 



These comments illustrate Canadian judgments 
of some racialized people as incompatible 
with Canadian society: 

[T]he native of India is not a 
person suited to this country ... 
accustomed as many of them are to 
the conditions of a tropical 
climate, and possessing manners and 
customs so unlike our own people, 
their inability to readily adapt 
themselves to surroundings entirely 
different could not do other than 
entail an amount of privation and 
suffering which renders a 
discontinuance of such immigration 
most desirable in the interests of 
the Indians themselves. 

(Mackenzie King. House of Commons. Sessional Paper 
No. 360. 1908:7-8. cited in Bolaria and Li. RdCidl 
Oppressjon in Canada (note 13). p. 171.) 



As long as immigration from the 
Orient was confined to a few odd 
Chinamen a year, who were content to 
do work distasteful to a white man. 
no particular objections were 
raised. It was when the Japanese and 
Hindus started pouring in ... by the 
thousands that the trouble arose 
.... The Orientals cannot be 
assimilated. 

(J.S. Woodsworth. social reformer, leader of the Co- 
operative Commonwealth Federation [predecessor of 
the New Democratic Party] and author in Strangers 
t/ithin Our Gates (1909: Toronto: University of 
Toronto Press. 1972). pp. 142-155.) 

It has been our longstanding 
practice to deal favourably with 
British subjects of the white race 
from the British West Indies .... On 
the other hand, apart from limited 
domestic movement, no encouragement 
is given to persons of coloured race 



('Memo' from the Director. Immigration Branch, to 
Deputy Minister. Department of Citizenship and 
Immigration. March 10. 1958. cited in Satzewich. 
Racism and Foreign Labour (note 1). p. 126.) 

[Canadians] ... are telling the 
Commons immigration committee ... 
that if there have to be immigrants, 
they should be trained immigrants 
from Europe. That's not racism. Mr. 
Oostrom said. Rather. Canadians are 
merely seeking 'people who can 
adjust to this climate. ' 

("Phone-Ins. Polls Bristle With Anti -Immigrant 
Feelings." The Globe and Mail. Toronto. March 6. 
1987. quoting John Oostrom. a Progressive 
Conservative member of the House of Commons 



Immigration systems, like imperial systems, may judge racial groups as inferior or 
superior, normal or strange, civilized or savage. The Saturday Night editorial quoted 
above, for example, was mostly a forthright response to a proposal to increase the 



Racism in Justice: Understanding Systemic Racism 45 

number of Chinese men immigrating. As well as describing Chinese people as "an 
inferior race," the magazine said, "We can get Chinese labour (but) these people 
will not possess value as citizens, and when once fastened to the country will retard 
its development." 

These immigration systems use race to measure compatibility and fit with the 
receiving society. Thus an important meaning of racial difference in these systems is 
the perceived capacity to belong. 

This meaning of racial difference is important in Canada. Since the middle of the 
19th century, it has shaped the recruitment of labour from other countries that 
Canada has needed to grow and prosper. Some racialized people have been excluded 
because of their origins and others permitted entry only if they took undesirable and 
low-paid jobs,'^ 

Emphasis on compatibility with (white) Canadian identity for the purposes of 
immigration has in turn influenced the meanings attached to racial differences 
among residents of Canada. Many white-skinned people are not racialized as white 
or ethnic, or as members of a different culture. Their signs of origin are invisible 
because they are defined by their skin colour as "Canadian." TTiese Canadians have 
the comfort of leading their everyday lives without being faced with expressed or 
implicit questions about their origins or whether they belong in this country. 

By contrast, constructions of other Canadians as "foreign" and judgments that they 
are incompatible persist long after migration to this country. Descendants of early 
black, Asian and South Asian settlers, whose only home is Canada, may find they 
are considered as outsiders, treated as strangers and presumed not to understand 
"Canadian ways."* 

How racialization produces racial inequality 

Racialization may produce racial inequality in social systems, which are organized 
processes for delivering services. Institutions such as the police, courts and prisons 
are systems, as are community organizations, govemments and corporations. These 
systems may be divided into smaller systems and they may combine to form larger 
ones. Each Ontario prison, for example, is a sub-system of the entire prison system, 
which in turn is part of the criminal justice system. From a broader perspective, 
every organized process in a society is a sub-system of the societal system and may 
also be part of a global system. 

Systems consist of people, their attitudes and beliefs (personnel); values, procedures, 
policies and informal rules (operating norms); ways of making decisions; and 
methods of delivering services. These elements continually affect one another over 



See Chapter 7 for examples in the criminal courts. 



46 SETTING THE SCENE 

time and together comprise a perceived whole. The totality of a system's norms and 
processes and the actions of its personnel comprises its systemic practices. 

Racialization in any element of a system or sub-system has the capacity to instill 
racialization into systemic practices, that is, to support or transmit racialization 
within the system. Unless constant vigilance is maintained, elements of a system 
may also spread unnoticed racialization into its practices. Furthermore, racialization 
in any system or sub-system may be transmitted to any others that are related. 

How people instill racialization into systems 

People instill racialization into social systems when they act as if races are real, 
different and unequal. They may act in this way because they are personally hostile 
towards members of racialized groups and the system does not stop them from 
expressing this hostility. Manifestations of such hostilit>' are commonly described as 
overt racism. 

People who are not personally hostile to racialized people may also act as if races 
are real, different and unequal. They may do so because such conduct brings 
rewards, makes life easier, helps them fit in with their colleagues, or is expedient. 
They also may be simply unaware that they are acting in this manner. If their 
conduct explicitly relies on racial categories, it may also be called overt racism. If 
not, it may be known as covert, subtle or implicit racism. WTiile these categories 
may be confusing, identifying the underlying basis for racist conduct is necessary to 
be able to select appropriate remedies. 

Findings presented in the Commission's Interim Report^" illustrate different 
underlying reasons for the same racist conduct. We found that many correctional 
officers routinely use racist language in dealing with black or other racialized 
prisoners and colleagues. For some officers, this abusive language clearly manifests 
intense hostility toward black or other racialized people. 

Other correctional workers who use racist language in dealing with black or other 
racialized prisoners do not appear to be driven by personal hostility. Some of them 
told the Commission about their own conduct and that of their colleagues, and were 
troubled by it. Yet they continued to act in this way. Why? 

It appears that some correctional officers use racially abusive language because 
"everyone else does it," or to prove themselves. For others, racially abusing 
prisoners is a means of demonstrating contempt for criminals. Finally, officers may 
use racial abuse to intimidate and control; in effect, to demonstrate their power over 
prisoners. 

Some people deny that these uses of racially abusive language are racist. They say 
that the abusive language is not motivated by hatred or animosity toward black or 
other racialized people; or that correctional officers sometimes also insult white 
prisoners, using general terms of abuse or by referring to personal characteristics of 



Racism in Justice: Understanding Systemic Racism 47 



these prisoners. Lack of racist motive and an apparent "equality of insults" are thus 
taken to prove the absence of racism. 

But these arguments prove nothing of the sort. First, as the Supreme Court of 
Canada has stated, impact - not motive or intent - is the proper test of unequal 
treatment. Speaking specifically of discrimination prohibited by the Ontario Human 
Rights Code, Mr. Justice William Mclntyre explained why the test for unequal 
treatment should not be intent or motive: 

... [To] hold that intent is a required element of discrimination under tlie Code 
would seem to me to place a virtually insuperable barrier in the way of a 
complainant seeking a remedy. It would be exU-emely difficult in most 
circumstances to prove motive, and motive would be easy to cloak in the 
formation of rules which, though imposing equal standards, could create ... 
injustice and discrimination ...^' 

Second, insulting white prisoners to show toughness, because they are criminals or 
to demonstrate power may indicate that some correctional officers are equally 
unprofessional to all under their control. But it does not mean that racially abusive 
language used for these purposes is the same as the insults directed at non-racialized 
prisoners. Racially abusive language adds another dimension, arising from the 
history and contemporary reality of racialization. When white people in positions of 
power insult black or other racialized individuals in racially abusive terms, their 
words reflect society's judgments about the superiority of white people and 
inferiority of others. Racist language has this effect whether or not it is intended, 
because these judgments are built into the meaning of the words. Consequently, 
racial abuse both insults the targeted prisoner and expresses a history of general 
contempt for the prisoner's racial group. 

Correctional officers who use racially abusive language obviously transmit 
racialization into prison systems, resulting in overtly racist incidents. As we have 
shown, however, these incidents may have a variety of causes. Personal hostility 
towards black or other racialized people may be one factor, lack of professionalism 
another, and desire for control a third. Each results in racialization in a system, 
recognizable by explicitly racist incidents. 

However, identifying the different factors at work is critical to finding appropriate 
remedies. If, for example, correctional officers use racially abusive language because 
they lack professionalism or specific skills for managing prisoners, then teaching 
them about other cultures or that racist language is wrong is unlikely to change their 
behaviour. They may already know it is wrong. More promising remedies would be 
careful monitoring of officers' conduct, rewards for those who speak out against 
racial abuse, and skills development among officers who engage in it. By contrast, 
officers who use abusive language because "everyone else does it" may well benefit 
fi-om anti-racism training that demonstrates the harm such behaviour causes. 



48 SETTING THE SCENE 

Officers who feel strong animosity toward black or other racialized people may or 
may not be capable of changing their behaviour. Officers capable of changing would 
likely benefit from remedial training, but the content and structure of an anti-racism 
program effective for them is likely quite different from one intended for the 
thoughtlessly unprofessional. 

In some cases people may transmit racialization into a system because they are 
uninformed or thoughtless, or have consciously learned or subconsciously absorbed 
stereotypes of racial difference. A black justice of the peace reported a shocking 
example of such a stereotypical judgment by his mentor, a white justice of the 
peace: 

We worked together pretty well and he was a fine teacher. One day, we were 
having lunch and he told me I was the first Black person he had ever worked 
with .... [H]e learned a lot fi-om me, he said, because before he got to know me, 
he always thought that all Blacks were no good and now he knows better and is 
more careful. "I don't assume tliey are all criminals now," [he told me].^^ 

Mr. Justice Henry Brooke of Britain calls the injustices that may result from lack of 
awareness, thoughtlessness and stereotypical assumptions the "three great risks of 
ignorance": 

The risk of creating offence and hurt through ignorance of important things 
which are very personal to people. The risk of doing injustice, of getting things 
badly wrong, through ignorance of important things about people's cultures, or 
about body language, or about the danger of other communications breakdowns. 
And the risk of doing injustice through ignorance of the potency of sub- 
conscious discrimination.^' 

An incident during a 1993 trial of a well-known member of Toronto's black 
communities illustrates these risks of ignorance. Among many black people 
attending the trial, some wore head coverings according to their cultural and 
spiritual traditions. Immediately af^er entering the courtroom, the trial judge directed 
a black man and a black woman sitting in the audience to remove their head 
coverings or leave the courtroom. He refused to hear submissions from them or 
from counsel in relation to the religious nature of the head coverings. Neither the 
crown attorney nor defence counsel had suggested that the head coverings would 
interfere with the faimess of the trial. Nor did anyone suggest that these spectators 
had been or would be disruptive. The two spectators left the courtroom, deeply 
insulted by the judge's behaviour.* 

A few days later, without hearing any evidence on the cultural or religious 
significance of the head coverings, and without allowing the excluded spectators to 
make submissions, the judge released written reasons for his order. ^^ He said: 



The two spectators visited Jie Commission immediately after leaving the courtroom and told us of the anger and 
distress the judge's actions had caused them. 



Racism in Justice: Understanding Systemic Racism 49 

Body cloUiing must not, in the view of the judge, be likely to attract attention 
away from proceedings. Nor should head coverings .... 

In the British. European, Chinese, Japanese and many oUier Asian cultures and 
probably other group traditions, uncovering one's head is a particular mark of 
respect It is not necessarily religious. 

Flamboyance is often a hallmark of those who insist on their right to avoid Uiis 
tradition. Tliat is, by definition, intrusive. 

Some head coverings, by their shape, colour and design, are obvious and easily 
recognizable as signalling to Uie eye an adherent of a well-established and 
recognizable race, culture, national or religious community; one of those 
communities which are clearly within tlie purview of the Charter 

There are, as well, many self-proclaimed and unrecognized forms of religion or 
cuhs claiming to be religious which have occurred ... throughout history. They 
come and go. Often, to attract attention and new adherents, bizarre, intrusive or 
simply impolite attire is worn. These religions may exist ... but the Charter does 
not guarantee some right to enter and remain in a courtroom where the result is 
disruptive. A public trial does not include offensive or intrusive costumes. 

These reasons suggest that the judge neither understood nor respected the cultural 
and reUgious traditions of the two spectators. This ignorance of something important 
and personal to the black spectators caused offence, hurt and embarrassment. It also 
resulted m unequal treatment because these spectators were excluded from the 
courtroom unless they removed their head coverings, while the judge indicated that 
other people wearing head coverings would be allowed to remain in court. 

The judge might well have made the same order and said similar things about white 
spectators. But for a white judge to characterize the clothing of white spectators as 
"offensive or intrusive costumes" and as "bizarre, intrusive or simply impolite attire" 
does not have the same effect as so characterizing clothing reflectnig cultural 
traditions of black spectators. When white authority figures make such remarks 
about an expression of black persons' traditions, it suggests the system they 
represent lacks respect for those traditions or is ignorant of them. Because ignorance 
and disrespect are common features of historical and contemporary racialization, 
such remarks are understood as judgments about the strangeness and inferiority of 
the black persons' "self-proclaimed and unrecognized" culture. 

In addition to illustrating the risks of ignorance, this example shows how people 
may transmit racialization into systems in very specific ways. This judge clearly did 
not consider all racialized people as different from, and unworthy of the same 
respect as, white people. Indeed, he notes that "Chinese, Japanese and many other 
Asian cultures" have the same tradition as what he calls "British" and "European" 
cultures. Thus, on this issue, Asian people are not constructed as racially different. 
(Though the judge does not mention those black cultures that treat uncovering one's 
head as a "mark of respect," he would presumably also view them as normal and 



50 SETTING THE SCENE 

reasonable.) All cultures in which the wearing of head coverings is a mark of 
respect are constructed as different, but only some are judged unacceptable or 
bizarre. By treating the black spectators' head coverings as examples of strangeness, 
the judge introduced a highly specific form of racialization into the system he 
represents. 

How decision-making inserts racialization into systems 

Decision-making inserts racialization into systems when the standards or criteria for 
making decisions reflect or permit bias against racialized people. Standards and 
criteria are part of a system's operating norms and may be formal and explicit in 
laws, policies and procedures. Or they may be informal, arising from accepted ways 
of doing things. Informal standards are particularly significant to decision-makers 
when the formal norms grant them considerable discretion. 

Racialized bias in decision-making results in racial inequality in treatment and 
outcomes. These inequalities may in turn promote racialization in the system where 
bias occurs and in related systems. This occurs when people see the disparities as 
proof that races are real, different and unequal - rather than as a product of the 
system's decision-making. 

Inherent bias in standards 

Standards may be inherently biased against racialized people. This direct bias exists 
where standards treat something explicitly linked to a person's origin as relevant to 
the decision. It may be inherent in formal operating norms, for example, when 
immigration systems demand higher skills of black or other racialized people who 
apply for entry than of non-racialized people. ^^ Bias may also be inherent in 
informal criteria. For example, the law gives judges broad discretion over what 
happens in court. In the incident described above, the judge applied an informal 
standard that the head coverings of some cultural traditions, but not those of others, 
are permitted in courtrooms. 

Standards may also be inherently biased if they use apparentiy neutral criteria that 
penalize racialized people. The discrimination that results from such standards is 
generally called indirect. A good example is the height and weight standards once 
used in selecting poUce officers. Until the 1980s these standards prevented many 
people of Asian origin - and most women of any origin - from working as police 
officers. Racial origin or sex was not specified in the employment qualifications, but 
the standard excluded large numbers of people who were otherwise qualified. 

Another example, presented in more detail in Chapter 5, is the use of employment 
status as a factor in bail decisions. Black accused in the Commission's study were 
more likely than white accused to be unemployed,* and more likely to be imprisoned 



This is not surprising. There is considerable evidence of anti-black discrimination in labour systems, and census data 
for 1991 show generally tnat black people are more likely to be unemployed than people of British or French 
origins. 



Racism in Justice: Understanding Systemic Racism 51 

before trial. The data indicate that some of the racial disparity in pre-trial 
imprisonment is due to judges and justices of the peace using employment status 
when making bail decisions. 

Transmitted bias in decision-making 

Social systems use sequential or complex processes to make decisions. By this we 
mean that accomplishing the system's purposes requires several decisions made at 
different stages by different system personnel. Choices or decisions made at one 
stage of the process affect other decisions made in the system. Consequently, 
racialization in one part of the system is highly likely, unless precautions are taken, 
to be transmitted into others. 

This type of bias is a serious risk in the criminal justice system, which is complex 
and involves sequential decisions. Each stage of the process depends on choices 
made in other parts of the system. Judges, for example, can impose penalties only 
on people who come before them for sentencing. People who appear before judges 
are neither a comprehensive sample of Canadians who commit crimes, nor a random 
sample of offenders. Who appears before a judge for sentencing depends on earlier 
decisions of members of the public, police officers, lawyers, justices of the peace, 
and sometimes other judges. 

Racialization in these earlier decisions may affect the racial composition of those 
who appear before judges for sentencing. Racialization may also influence how 
justice officials present information to judges about offenders and offences. For 
example, for many offences crown attorneys can choose whether to prosecute 
summarily or by indictment. This decision, known as "crown election," has 
important consequences throughout the criminal justice process, and may influence 
the sentence imposed. Charges prosecuted by indictment are treated as more serious 
than those on which the crown proceeds summarily, a difference reflected in much 
higher maximum sentences. 

Crown attorneys consider many factors when deciding how to proceed. Though race 
is not obviously relevant, one of the Commission's major studies found a difference 
in crown elections for black and white males charged with the same offences that 
we could not explain by any legally relevant factor (see Chapter 6). One important 
consequence of this difference is that judges are more likely to have a harsher range 
of sentences available upon conviction, and to impose stiffer terms, when sentencing 
black males than white males. Thus even judges who apply fair and reasonable 
standards - and who do not believe races are real, different and unequal - may find 
that their judgments reflect bias transmitted from racialized decisions made by 
crown attorneys. 

Transmitted biases pose challenging problems for those whose role is affected by 
decisions made elsewhere in the system. However, these decision-makers can often 
minimize if not entirely neutralize transmitted bias. Active, visible and continuous 
commitment by judges to restraint in sentencing, for example, could reduce the risk 



52 SETTING THE SCENE 

that a racialized offender is sentenced to prison while a white person convicted of 
the same offence and with a similar criminal record is not (see Chapter 8). 

More generally, judges could block transmission of bias into their sentencing 
decisions by vigilance. They could learn to watch for subtle instances of 
racialization in submissions of lawyers and evidence of witnesses. Justice Brooke 
has described how a young EngUsh judge changed his sentencing practices: "He told 
me that he is now so well aware of the risks ... that before he passes sentence on a 
black defendant he always carries out the mental check of asking himself whether he 
would have passed the same sentence on a white defendant."^* 

How service delivery may support racialization 

Whether a social system supports racialization or does not accept that racialized 
people are equal to white people may be revealed in the organization or delivery of 
its services. Any apparent acceptance of racialization may significantly diminish 
public confidence that the system treats people equally. Nearly always, systems used 
by substantial numbers of black or other racialized people but staffed almost 
exclusively by white people give the appearance of supporting racialization. 

In the criminal courts of Metro Toronto and other major urban centres, most lawyers 
and judges are white, but large proportions of accused persons and other court users 
are from Aboriginal, black or other racialized communities. In Northern Ontario, 
mainly white lawyers and judges administer criminal justice to Aboriginal people. 
This contrast between users and officials presents a stark image, which is perceived 
as white justice imposed on Aboriginal, black and other racialized people. 

The criminal justice system may be able to show that it does not explicitly exclude 
Aboriginal, black or other racialized people from employment, and that it maintains 
no obvious barriers to hiring them. But this would not be enough to reassure users 
that the criminal justice system repudiates racialization. A system that is unable to 
persuade its users that it rejects racialization, risks being perceived as endorsing it. 

A senior police officer, speaking at a public forum in Ottawa, gave the Commission 
a subtle example of how service delivery can contribute to perceptions that a system 
supports racialization: 

"In the recent prosecution of a police officer accused of shooting a black 
person, the judge ordered the doors of the coiulroom locked during the jury 
address by both counsel. The result was that 14 black persons - interested 
enough in the proceedings to come to court in mid-week - were left outside, 
shut out of the trial but also shut out of a system which decides its own 
convenience is paramount to the legitimate rights of the community members. 
Obviously, the concentration of the jury is important, but so too are the 
legitimate needs of tlie community ... Even if the action is supportable, the lack 
of explanation and complete absence of concern for the impact is deplorable." 



Racism in Justice: Understanding Systemic Racism 53 



This incident involved a routine decision during jury trials. Judges normally order 
the doors locked during their own addresses to juries in order to avoid interruptions 
that might diminish the concentration of jury members. They generally extend the 
order to cover lawyers' final statements to the jury, if a crown attorney or defence 
counsel requests it.* As far as the criminal justice system is concerned, the judge's 
decision did not suggest a conscious intention to exclude black people. Nor did it 
suggest disrespect for or hostility toward them. 

Nonetheless, the consequences of the decision, particularly the failure to 
communicate the reasons for barring entry, were damaging. The order sent a vivid 
message to this white observer, a knowledgeable criminal justice professional, that 
black people were "shut out" from justice. The black members of the public, 
unfamiliar with court processes, likely would have experienced the exclusion even 
more keenly. 

This trial, of a white police officer who had shot an unarmed black man during a 
raid on a house used by reggae musicians, was a significant event to black 
Ontarians. Many of them viewed the shooting itself as an exclusion from justice and 
saw the court process as a test of whether the justice system demonstrates equal 
concern for all Canadians. To them, the exclusion of black spectators from the 
lawyers' addresses to the jury - without warning, explanation or apology - would 
powerfully represent a lack of respect for black people and suggest that the system 
supports their racialization. 

This example also shows that the racist impact of an act does not necessarily depend 
on comparing the treatment of black people and white people. In this case it would 
not have mattered if white people were also barred from the court, because the 
relative advantages of white and black spectators were not at issue. Rather, the 
concem was the relationship between the justice system, represented by the judge, 
and black Ontarians, represented by those locked out of the court. 

How could the risk that locking the doors would have a racist impact have been 
reduced? First, the judge could have told spectators throughout the trial that 
although they were generally free to enter and leave the courtroom during the 
proceedings, the doors might be locked during addresses to the jury. A brief 
explanation of the reason would have done much to allay suspicion. Second, 
information about limitations on public access to courtrooms could have been posted 
throughout the courthouse to help spectators anticipate events. Finally, a court 
official could have been stationed at the locked door to explain to the public why 
entry was prohibited. Though people shut out of the court might still have felt 
frustrated, they would have been less likely to experience their exclusion as 
suggesting disrespect for them. 



The trial transcript shows that the defence lawyer requested the judge's order, after he> was distracted by jurors' 
looking at spectators entering the court during his address. 



54 SETTING THE SCENE 

This example shows how an apparently innocuous and routine decision could leave 
people with a strong sense of exclusion. It demonstrates the importance of criminal 
justice system officials being conscious of the experiences of racialized people and 
anticipating their needs and perceptions in carrying out the everyday business of the 
courts. It was encouraging that this example was brought to our attention by a white 
police officer who seemed to have an understanding of both the practical and 
symbolic consequences of this incident for members of racialized communities. 

Operating norms and racialization 

Systems manage personnel, decision-making and service delivery through law, 
internal procedures and policies, and through what Richard Ericson calls "recipe 
rules." These informal rules are the often unspoken understandings about how the 
day-to-day work of the institution is conducted. "^^ Together, the various rules, 
procedures and policies comprise a complex and dynamic culture that 
simultaneously influences and is influenced by individuals who work in the system. 

Operating norms that set out inherently biased standards for decision-making 
directly transmit racialization into a system. They may also encourage further 
racialization in the system by promoting stereotypes and assumptions that races are 
real, different and unequal. For example a 1992 "race relations" audit of the Metro 
Toronto Police concluded - 

The Force has done a reasonable job of ensuring that those who are recruited do 
not display an overt bias which would make them unsuitable to be a police 
officer. What is apparent is that a change occurs after joining the Force. There 
was significant evidence that many police officers ... develop strong feelings and 
beliefs as to attributes of individuals, based on factors such as appearance and 
racial backgrounds .... [TJhese ... attitudes can and do produce a bias in 
behaviour which results in unequal treatment of individuals of different cultural 
or racial backgrounds.... 

[Wjhat is evident here is not so much a symptom of personal belief as evidence 
of a developed culture and value system within the organization.^* 

Operating norms may tolerate racialization in systemic practices. There are three 
main forms of toleration: passive toleration, disregard, and collusive toleration. 

Passive toleration 

Passive toleration of racialization reflects lack of awareness that it infests the 
system. This exists when people responsible for the work of an institution fail to see 
evidence of racism in its practices. Passive toleration may persist because practices 
are not monitored, so no one officially recognizes that inherent or transmitted biases 
are affecting decisions. 

The Commission found, for example, that black men charged with some offences 
are less likely to be granted bail than white men charged with the same offences, 
even after their criminal records and other relevant factors are taken into account 



Racism in Justice: Understanding Systemic Racism 55 



(see Chapter 5). This finding indicates systemic toleration of racial discrimination in 
the bail process. The toleration is passive because decision-makers and system 
managers may not know the extent to which practices result in discrimination 
because decisions to grant bail are not monitored. 

Disregard 

More active toleration of racialization - disregard - exists when an institution knows 
about racism in its practices, but its operating norms do not produce an effective 
response. Sometimes disregard results from a system's operating norms not treating 
racial equality as a priority. People may know of racist incidents but ignore them 
because they think such events happen only on a small scale, or are isolated 
incidents. Several lawyers who responded to the Commission's surveys, for example, 
said systemic racism is not a problem in the criminal justice system because racist 
judges and lawyers are a small minority (see Chapter 2). 

Disregard may also occur if decision-makers lack a clear idea about how to 
eliminate systemic racism, and the operating norms do not encourage development 
of the necessary expertise. Again, the result is that evidence of racism is known but 
ignored. A crown attomey who responded to the Commission's survey described the 
systemic problem this type of toleration poses: "At present, although certain 
individuals [judges] are notorious, nothing is done by the system. By tolerating their 
behaviour it is condoned, continues and increases." Even if the problem is created 
by "a small minority," the failure to deal effectively with them constitutes a 
systemic problem for the criminal justice system. 

Collusive toleration 

The third form of institutional toleration of racism, collusion, occurs when operating 
norms encourage practices based on racialized standards. This form of systemic 
racism is active in the sense that the institution promotes the rules or norms. It is 
also explicit in the sense that the norms or rules are clearly acknowledged as 
acceptable. 

In Canada today, hov/ever, the offending norm is rarely motivated by racial hostility. 
A rule may have been adopted for an apparently legitimate reason, but one of its 
consequences is discrimination against racialized people. The essence of collusive 
toleration is not the intention behind the rule, but the practice it promotes. 

Until recently the dominant practice in Ontario courts, for example, had been to 
prefer a Christian oath for witnesses to bind themselves to tell the truth.* This 
practice linked one dimension of how courts treat people to religion, one 
characteristic of origin. Although everyone must promise to tell the truth in court, 
the oath procedure biased their choice about how they do so. 



Recent changes to the Canada Evidence Act |S.C. 1994, c. 44, s. 88| have removed the formal preference for a 
religious oath. See Chapter 7 for fuller discussion of this issue. 



56 SETTING THE SCENE 

Beyond the issue of choice, the traditional preference for a reUgious oath, 
particularly a Christian oath, was an important symbol. Making the holy book of 
Christianity, but not those of other faiths, available in courts suggested that the 
justice system viewed the spiritual tradition of Christian Canadians as normal and 
more acceptable than those of all other Canadians. In effect, the justice system 
operated as if professing a religion was the norm, and as if Christianity was the only 
faith worthy of respect. Differential treatment in this example was explicit and 
promoted by the justice system. It thus reflected collusive toleration of racialization 
in its systemic practices. 

Systemic racism: summary of the process definition 

Systemic racism is a complex social process. It reveals itself in specific incidents, 
acts and consequences, but it is the. underlying process that makes these events 
"systemic." This process in turn consists of other social processes. One of them is 
racialization, the other is the system. 

To summarize, the starting point of this analysis of systemic racism is the process of 
racialization. Racialization in Canada consists of classification of people by 
reference to signs of origin and judgments about the character, skills, talents and 
capacity to belong in Canada that signs of origin represent. 

Social systems - ways of organizing activities and accomplishing tasks - involve 
processes that do not inherently contain or perpetuate racialization. However, they 
may do so by incorporating it into their operating norms and decision-making and 
by tolerating it in service delivery. 

Both the introduction and perpetuation of racialization in these social systems occur 
through their personnel. However, it is often impossible to identify any one or more 
persons responsible for introducing racialization because the classifications and 
judgments are built into the system's operating norms. This process of adopting and 
perpetuating racialization within these social systems constitutes systemic racism. 

System personnel, the means by which a social system applies and transmits 
racialization, are also the only people who can eliminate it and protect the system 
against its retum. While the staff and officials of a system cannot be expected to 
succeed on their own, they have to be committed to making racialization intolerable 
if they want to bring about real, effective and permanent change. 

Recognizing and eliminating systemic racism 

Systemic racism is revealed by incidents, acts and consequences, and is recognized 
by its impact on racialized people. Elimination of systemic racism is a three-stage 
process that begins with detecting its impact. Next, systemic practices must be 
investigated to find out how racialization is being inserted, transmitted and 
supported. Then appropriate reforms may be developed and implemented. 



Racism in Justice: Understanding Systemic Racism 57 

Tlie Commission found the greatest confusion in this process at the stage of 
estabhshing impact. There are tvvo main approaches to recognizing racism by its 
impact. One emphasizes the experiences of raciahzed people. The other compares 
the outcomes of decisions affecting racialized and non-racialized people.'^ 

In the experience-based approach, perceptions of exclusion and injustice that 
racialized people may have as a result of how they are treated are cmcial to 
recognizing racist impact.^" These perceptions may be recounted by them or an 
observer. A good example of observed experience is the incident noted above in 
which a senior police officer described the impact of an order to lock the courtroom 
doors during a portion of the trial of a white police officer charged with shooting a 
black man. 

Experiences of members of racialized groups provide important insights into racism 
and say much about the impact of systemic practices. As such, they are a valuable 
tool in recognizing racism. Like other methods, however, experience has limits. 

People experience the same events or practices differently. Thus a decision to 
believe the experiences of one person or group immediately poses the question of 
why the experiences of other people or other groups are less valid. Experience, even 
if presented with sincerity, coherence and balance, may fail to convince those who 
simply believe in another version of the truth. Even within a particular group, 
experiences may vary widely. For example, the comments of judges and lawyers 
reported in Chapter 2 illustrate radically different experiences about the extent to 
which systemic racism is a problem in the Ontario criminal justice system. 

A second limitation of relying on experience to recognize racism is that gaining 
access to experience is difficult. Contrary to what some people think, racialized 
people are often reluctant to relate their experiences of racism. Few enjoy publicly 
recounting incidents in which they felt humiliated, and the impact of racism is for 
many among the more degrading, if only too common, experiences of their lives. As 
one Ontarian told the Commission at a public forum in Kingston, 

"The problem with [experience] is that you put the person who is being 
victimized in a position of being re-victimized by having to tell their story. On 
the one hand there is great virtue in telling stories, but there has to be sensitivity 
in how those stories are gathered and ... respect [for] the voice and the position 
from which people are telling tliose stories." 

As this oral submission also notes, sceptical responses to experiences of racism tend 
to make people more reluctant to talk about its impact. 

"People tell their stories at great risk, at great emotional pain, at great cost. 
There has to be sensitivity to that. Part of [sensitivity] is believing the stories 
that are told. If people are put in the position of theu- stories being called into 
question or being evaluated as to whether or not that is in fact a racist incident, 
you are not going to get [openness]." 



58 SETTING THE SCENE 

As an alternative to experience, impact tests for racism may compare the results of 
systemic practices on racialized and non-racialized people. Such comparisons look 
for suspect patterns in standards used to make decisions, or in the way that 
standards are applied. Both may lead to differential outcomes or impact. 

Comparative approaches often use statistical (quantitative) methods to identify 
patterns. These methods can be used to process large quantities of information, and 
the studies can be easily replicated. Thus, statistical comparisons are often seen as 
more objective and reliable than other ways of establishing systemic racism. 

On the other hand, as researcher Marian FitzCrerald points out, "we must look 
sceptically at the privileged status currently given to quantitative methods." These 
methods also have their limits. FitzGerald warns that over-reliance on quantitative 
measurement may lead people to think too narrowly about racism. As she states, 

[0]nce we try to reduce [racism] to a set of discrete, measurable components we 
have already lost its essence. What is racial ... is not only multifaceted, it arises 
and manifests itself differently in different places at different times for different 
groups .... It is not a "thing" of itself but is produced variously by a wide range 
of interactions between combinations of factors .... [W]hat produces a racial 
result for one group in one situation at one time may comprise none of the 
elements which produce a racial result for another group in a different situation 
at another time or in a different place.^' 

A narrow approach risks missing or misunderstanding relationships between 
racialization and other factors that may influence systemic practices, including other 
social divisions. For example, some lawyers and judges who acknowledge 
differential outcomes by race told the Commission that class or poverty is the real 
explanation for these differences in the criminal justice system's treatment of white 
and racial minority people (see Chapter 2). 

These comments show the difficulties that arise from viewing racism in isolation 
from other social factors.* Many black and other racialized accused are more likely 
than white accused to be unemployed or to have low incomes. ^^ Consequently, a 
standard that treats employment status or income as a necessary factor in criminal 
justice decisions is likely to result in disparate outcomes for white and racialized 
people. 

Such a standard has a racist impact even though it is not motivated by racial 
hostility. The systemic racism involved may be indirect, and it may be transmitted 
from racialization in labour systems. Nevertheless, the bias would be a real problem 
that the criminal justice system must address if it is to combat systemic racism in its 
own practices. 



They also raise the question of why class or poverty in general affects the treatment of accused and convicted 
people. 



Racism in Justice: Understanding Systemic Racism 59 

A narrow approach may also miss the influence of combinations of factors on 
decision-makers. For example, a judge may treat employed white and black men 
who own property the same. However, factors such as unemployment, youth and 
residence locations may result in a different outcome. Thus a young unemployed 
black man who lives in a public housing location considered undesirable may be 
treated more harshly than a white man in equivalent circumstances. In other words, 
outcomes may not always be influenced by race alone, but by race in combination 
with other factors. 

Conclusion 

Racism has a long history in Canada. It was fundamental to relationships between 
Canada's First Nations and the European colonizers. It has shaped immigration to 
this country and settlement within it. Racism has led to denials of basic civil and 
political rights to Canadian citizens, excluded adults from jobs and children from 
schools, limited opportunities to acquire property, and barred people from hotels, 
bars, theatres and other recreational facilities. In these ways, racism has restricted 
the opportunities and futures of some Canadians and benefited others. " 

Though many Canadians throughout history have accepted racism, others have 
vigorously resisted it. They have lobbied, campaigned and protested against the 
fundamental denial of humanity that racism represents. These efforts have had 
significant results. While the law once promoted or permitted unequal treatment 
because of race, today it generally prohibits such discrimination. Equality is now 
guaranteed by our Constitution. 

Despite these important achievements, racism is still entrenched in Canadian society. 
The Aboriginal Justice Inquiry in Manitoba,''* the Donald Marshall Inquiry in Nova 
Scotia,'^ The Cawsey Report in Alberta,^* the Interim Report of this Commission" 
and many other studies make the same point: racism in Canadian society continues 
to shape the lives of Aboriginal, black and other racialized people. 

The current challenge is for Canadians to grapple with racism's systemic dimensions. 
The analysis in this chapter of the process of systemic racism provides the 
framework for our analysis of Ontario's criminal justice system in the chapters 
which follow. 



60 SETTING THE SCENE 



Endnotes 

' For research on how beliefs about "race" are socially constructed, see generally: Stuart Hall, 
Chas Critcher, Tony Jefferson, John Clarke and Brian Roberts, Policing the Crisis: Mugging 
the State and Law and Order (Basingstoke: Macmillan, 1978); Paul Gilroy, There Ain't No 
Black in the Union Jack (London: Hutclunson, 1987); Jan Nederveen Pieterse, White on 
Black: Images of Africa and Blacks in Western Popular Culture (New Haven: Yale 
University Press, 1992); Vron Ware, Beyond the Pale: White Women, Racism and History 
(London: Verso, 1992); Catherine Hall, White, Male and Middle Class: Explorations in 
Feminism and History (New York: Routledge, 1992). 

For discussion of tlie concept of racialization, see generally: Robert Miles, Racism (London: 
Routledge. 1988); Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm 
Labour Migration to Canada since 1945 (London: Routledge, 1991); Stephen Small, 
Racialized Barriers: The Black Experience in the United States and England in the 1980s 
(London: Routledge, 1994); Michael Keith, Race, Riots and Policing: Lore and Disorder in 
a Multi-Racist Society (London: UCL Press, 1993). 

For useful Canadian discussion of how to understand racism, see Carl E. James, Seeing 
Ourselves: Exploring Race, Ethnicity & Culture (Toronto: Thompson Educational Publishing, 
Inc., 1995); Frances Henry, Carol Tator, Winston Mattis and Tim Rees, The Colour of 
Democracy: Racism in Canadian Society (Toronto: Harcourt Brace and Company, Canada, 
1995). 

^' Ashley Montagu, Man's Most Dangerous Myth: The Fallacy of Race (Cleveland: World 
Publishing, 1964). 



3. 



6. 



7. 



See generally, Montagu, Man 's Most Dangerous Myth (note 2); Montagu, The Concept of 
Race (New York: Collier, 1964); Stephen Jay Gould, The Mismeasure of Man (New York: 
WW. Norton, 1981). 

See Henry et al. Colour of Democracy (note 1), for numerous examples of the power of 
racialization in modem Canada. 

Miles, Racism (note 1). 

Gould, Mismeasure of Man, and Montagu, Concept of Race (both note 3). 

Canadian Press news wire [Ottawa Citizen, Dec. 9, 1993]. 

The original provision for segregated schools in Ontario was An Act for the Better 
Establishment and Maintenance of Public Schools in Upper Canada, S.C., 1849, 12 Vict., c. 
83, ss 69-71. By 1960, the legislation was called the Separate Schools Act R.S.O. 1960, c. 
368. This legislation was abolished in 1964 after Professor Harry Arthurs published a note 
criticizing it: "Civil Liberties and Public Schools: Segregation of Negro Students," Canadian 
Bar Review 41 (1963), p. 453. 

See generally: Peggy Mcintosh, "White Privilege: Unpacking the Invisible Knapsack," Peace 
and Freedom 11 (1989); Philomena Essed, Understanding Everyday Racism: An 



10. 



11. 



13. 



15. 



16. 



17. 



19. 



Racism in Justice: Understanding Systemic Racism 61 



Interdisciplinary Theory (NewbiiT)' Park. Calif.: Sage, 1991); Ware, Beyond the Pale (note 
1); and Hall. White. Male and Middle Class (note 1). 

Cited in Hcnn' et al., Colour of Democracy (note 1). p. 87. 

Multiculturalisni and Citizenship Canada, Eliminating Racial Discrimination in Canada 
(Ottawa: Supply and Senices 1989), p. 7. 

R. V. Parks (1994) 84 C.C.C. (3rd) 353 at 369. 

See generally: Ron G. Bourgeault. 'Race and Class under Mercantilism: Indigenous People 
in Nineteenth-Century Canada," and James Frideres, "Institutional Structures and Economic 
Deprivation: Native People in Canada," in B. Singh Solaria and Peter S. Li. eds.. Racial 
Oppression in Canada, second edition (Toronto: Garamond, 1988); D. Raunet, Without 
Surrender, Without Consent: A History of Nishga Land Claims (Vancouver: Douglas and 
Mclntyre. 1984); Thomas Berger, A Long and Terrible Shadow: White Values. Native Rights 
in the Americas 1942-1992 (Vancouver: Douglas and Mclntyre, 1992); Boyce Richardson. 
People of Terra Nullius: Betrayal and Rebirth in Aboriginal Canada (Vancouver: Douglas 
and Mclntyre. 1993); Gail Kellough, "From Colonialism to Economic Imperialism: The 
Experience of tlie Canadian Indian," in J. Harp and J. Hofley. eds.. Structural Inequality in 
Canada (Scarborough, Ont.: Prentice Hall, 1980). 

See generally: Mr. Justice William Riddell, "The Slave in Upper Canada," Journal of Negro 
History 4 (1919), p. 372; Riddell, "Interesting Notes on Great Britain and Canada with 
Respect to the Negro," Journal of Negro History 13 (1928), p. 185; M. Trudel, L'esclavage 
au Canada franqais: Histoire et conditions de I 'escla\'age (Quebec: Les presses de 
rUniversite Laval, 1960). 

See examples in Daniel G. Hill, The Freedom-Seekers: Blacks in Early Canada (Agincourt: 
Book Society of Canada, 1981). 

See generally, Robin Winks. Blacks in Canada (New Haven, Comi.: Yale University Press, 
1971). 

Saturday Night. Oct. 27, 1906, p. 1 (editorial). 

Cited in Carl Berger, The Sense of Power: Studies in the ideas of Canadian Imperialism 
1867-1914 (Toronto: University of Toronto Press, 1970), p. 228. 

Bolaria and Li, Racial Oppression in Canada (note 13); Satzewich, Racism and Foreign 
Labour (note 1); Roxana Ng, "Sexism, Racism, Canadian Nationalism," in Himani Bannerji, 
ed.. Returning the Gaze: Essays on Racism, Feminism, and Politics (Toronto: Sister Vision 
Press, 1993); Ng, "Managing Female Immigration: A Case of Institutionalized Sexism and 
Racism," Canadian Women Studies 12 (1992), p. 20; Agnes Calliste, "Sleeping Car Porters 
in Canada: An Ethnically Submerged Labour Market," Canadian Ethnic Studies 19 (1987), 
p. 1; Calliste, "Race, Gender and Canadian Immigration Policy: Blacks from the Caribbean, 
1900-1932," Journal of Canadian Studies / Revue d'etudes canadiens 28 (1993), p. 131; 
Calliste, "Women of "Exceptional Merit': Immigration of Caribbean Nurses to Canada," 
Canadian Journal of Women and the Law / Revue femmes et droit 6 (1993), p. 85. 



62 SETTING THE SCENE 

^° Province of Ontario, Commission on Systemic Racism in the Ontario Criminal Justice 
System, Racism Behind Bars: The Treatment of Black and Racial Minority Prisoners in 
Ontario Prisons (interim report) (Toronto: Queen's Printer, 1994). 

Ontario Human Rights Commission v. Simpson-Sears Ltd. [1985] 2 SCR. 536 at 549. 

Quoted in Equal Opportunities Consultants, "A Community Consultation on the Perceptions 
of Racial Minorities," 1990 (manuscript on file), p. 36. 

Mr. Justice Henry Brooke, "The Administration of Justice in a Multicultural Society," Kapila 
Lecture by the chairman of the Ethnic Minorities Advisory Committee, Judicial Studies 
Board, United Kingdom, Nov. 18, 1993, (manuscript on file), p. 8. 

R. v. Laws, "Ruling on Dress Code," luu-eported, Nov. 15, 1993. 

Calliste, "Women of 'Exceptional Merit'" (note 19). 

Justice Brooke, "The Administration of Justice" (note 23), p. 19. Also quoted in Chapter 8. 

Richard V. Ericson, "Rules for Police Deviance," in Clifford D. Shearing, ed.. 
Organizational Police Deviance: Its Structure and Control (Toronto; Butterworths, 1981). 

Metropolitan Toronto Auditor, Review of Race Relations Practices of the Metropolitan 
Toronto Police Force, September 1992, pp. 14-15. 

See generally: Marian FitzGerald, "'Racism': Establishing the Phenomenon," in Dee Cook 
and Barbara Hudson, eds.. Racism and Criminology (London: Sage Publications, 1993), p. 
56. 

See Essed, Understanding Everyday Racism (note 9). 

FitzGerald, "'Racism': Establishing the Phenomenon" (note 29). 

See Chapter 4, as well as unemployment statistics for "visible minorities" reported in 
Canadian Social Trends (Ottawa: Statistics Canada) June 1995. 

See generally: Mr. Justice Walter S. Tamopolsky, "Discrimination and the Law in Canada," 
in Tamopolsky, J. Whitman, M. Ouellette, eds.. Discrimination in the Law and the 
Administration of Justice / La discrimination dans le droit et I 'administration de la Justice, 
Canadian Institute for the Administration of Justice / Institut canadien d'administration de la 
justice (Montreal: Editions Th6mis, 1993). 

^*' Province of Manitoba, Public Inquiry into the Administration of Justice and Aboriginal 
People, Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg, 1991). 

^* Province of Nova Scotia, Royal Commission on the Donald Marshall, Jr. Prosecution, Report 
(Halifax, 1989). 



21. 



22. 



23. 



24. 



25. 



26. 



27. 



28. 



29. 



30. 



32. 



33. 



Racism in Justice: Understanding Systemic Racism 63 



Province of Alberta, Task Force on the Criminal Justice System and its Impact on the Indian 
and Metis People of Alberta, Report, chair R.W. Cawsey ("Cawsev Report"). (Edmonton 
March 1991). 

Racism Behind Bars (note 20). 



Chapter 4 
Prison Admissions 



fSJociety has spent millions of dollars over the years to create and 
maintain the proven failure of prisons. Incarceration has failed in its 
two essential purposes - correcting the offender and providing 
permanent protection to society. 

- MacGuigan Report' 

After presenting perceptions and understandings of racism in the criminal justice 
system, we now turn to evidence of racial inequality in practices. The Commission's 
Terms of Reference ask us to examine how far the exercise of discretion at 
important decision-making points adversely affects racial minorities. In fulfilling this 
mandate we concentrated on imprisonment before trial and after conviction. 

We decided to emphasize imprisonment because isolating people from society and 
confining them is the harshest action that the Canadian state can take. Fundamental 
to the state's authority to take this action is the ideal that everyone is equally 
protected against unfair or unjust imprisonment. But practices do not always live up 
to ideals, particularly in highly discretionary systems - such as the criminal justice 
system - where general criteria govern the choices made. 

This chapter documents our main findings about admissions to Ontario prisons. It 
shows that black men and women and male youths are massively over-represented 
among prison admissions, an over-representation that has increased dramatically in 
recent years and that is much worse among pre-trial admissions than sentenced 
prisoners. After presenting these findings, we summarize possible explanations for 
them, and outline the key stages of the criminal justice system where discretionary 
choices could result in racial inequality in imprisonment. Later in the Report, we 
examine these choices in more detail and document the extent to which criminal 
justice practices do produce racial inequality in imprisonment before trial (Chapter 
5) and after conviction (Chapter 8). 



65 



66 SETTING THE SCENE 

Introduction 

Persons who are imprisoned before being tried are held in provincial jails and 
detention centres. Ontario is also responsible for housing almost all young offenders 
sentenced to imprisonment* and adults sentenced to prison terms under two years. 
(Adults sentenced to imprisonment for two years or longer serve their time in 
federal prisons.) 

Most people admitted to Ontario prisons are charged with or convicted of non- 
violent offences. Crimes against property dominate the provincial imprisonment 
statistics for both pre-trial and sentenced admissions. Drug charges and offences 
against the administration of justice, such as failure to appear in court and 
obstructing justice, also produce significant numbers of prisoners. 

The low proportion of violent offences among sentenced admissions is particularly 
well documented. In 1990/91,^ for example, more than 80 percent of sentenced 
prisoners were convicted of non-violent offences. In fact, almost 25 percent of all 
sentenced prisoners were imprisoned for nothing more than non-payment of fines. 
As might be expected from these statistics, few sentenced offenders receive the 
maximum provincial prison sentence of two years less a day. Over the last ten years, 
for example, the average sentence length has been consistently about 80 days. 

This pattern of imprisoning non-violent offenders suggests that imprisonment is 
over-used. Imprisonment is extremely costly and inefficient at rehabilitating people. 
In fact, considerable evidence suggests that imprisonment makes people more, not 
less, likely to commit future offences. The futility of Canada's sentencing practices 
has been subject to frequent criticism. According to - 

• Mr. Justice Vancise, J. A.: 

[Historically] ... imprisonment was based on either religious objectives [or] the 
provision of work and training, and, more recently, deterrence and rehabilitation. 
It is ... clear ... that imprisonment has failed to achieve any of these objectives 
in any meaningful way ..} 

• the Prevost Commission: 

At the very heart of our convictions about punishment is our absolute 
confidence that drastic penalties remain the most efficient way to bring the 
guilty to respect the law. However the vast majority of inmates are recidivists. 
Thus our prisons generate their own clientele.' 

• the MacGuigan Report: 



t 



Young offenders aged 14 or older may be ordered tried as adults for some very serious crimes. If convicted, they 
may serve some or all of their time in a federal penitentiary or adult provincial prison. All other custodial sentences 
served by young offenders are served in provincial institutions, in which they are kept separate from adults. 

Provincial statistics are drawn from annual reports covering Ontario's fiscal year, which runs from April 1 to March 
31. 



Racism in Justice: Prison Admissions 67 



Most of those in prison are not dangerous. However, cruel lock-ups, isolation, 
[and] the injustices and harassment deliberately inllicted on prisoners unable to 
light back, make non-violent inmates violent, and those already dangerous more 
dangerous/ 

the Law Reforni Commission of Canada: 



The need for restraint can be viewed as an echo of the belief that incarceration 
is a breeding ground for crime. If imprisonment is realized to be, at best, a 
partial failure, it is only logical to recommend that it be used with extreme 
moderation.^ 

• the LeDain Commission: 

Perhaps the chief objection of imprisonment is that it tends to achieve the 
opposite of the result which it purports to seek. Instead of curing offenders of 
criminal inclinations it tends to reinforce them." 

• the federal Ministry of the SoMcitor General: 

[Gjrowing evidence exists that, as educational centres, our prisons have been 
most effective in educating less experienced, less hardened offenders to be more 
difficult and professional criminals.' 

Judges Lilies and Stuart: 

Canada incarcerates at a rate that is third highest in the westernized world ... 
[A]s the incidence of both crime and incarceration is not going down, it is 
obvious that incarceration does not have the general deterrent effect that we 
imagine .... The majority of admissions to jail are non-violent offenders who do 
not need to be incarcerated to protect the public .... A large proportion of 
persons are incarcerated because there are no appropriate places or programs for 
them.* 

Mr. Justice Wood, J. A.: 

[W]e send too many people to jail in this country. Every royal commission on 
sentencing in the last 159 years, and there have been many, has come to the 
same conclusion.' 

These quotations acknowledge that our criminal justice system's costly emphasis on 
imprisonment has failed to reduce crime. Our findings of racial inequality in prison 
admissions provide another reason for Justice system officials to promote restraint in 
the use of incarceration and to support alternatives. 

Findings about racial inequality in prison 

admissions 

A note of caution 

The Commission urges caution in interpreting data that the Ministry of the Solicitor 
General and Correctional Services made available to us. For several reasons the 
numbers presented are, at best, estimates of the racial make-up of Ontario's prison 



68 SETTING THE SCENE 

populations.' Although they are the most complete data available, and they do give a 
general idea of racial inequalities in prison admissions^ at various stages of the 
criminal justice process, it is essential to understand their limitations. 

The first problem is that since the Ministry did not collect these data for systematic 
analysis, standard research conventions were not used in their collection. For 
example, a uniform practice was not used in the identification of prisoners by race. 
We were told that a correctional officer in each prison's Admissions and Discharge 
Unit usually makes such identification. However, we were also told that sometimes 
incoming prisoners are asked to self-report their racial origins.* 

Thus we do not know which data measure correctional officers' perceptions of race, 
and which data use the prisoners' self-identification. This distinction is important 
because self-identification and another person's observation of race tend to produce 
different results. In particular, classification by an observer carries a serious risk of 
error. Therefore, some groups may constitute a larger proportion of prison 
populations than the data suggest, while others may be smaller. 

Another limitation arises from the working conditions of admissions and discharge 
officers. Often, especially in large urban detention centres, officers work quickly and 
under pressure. Since information about race apparently has little operational value 
to prison authorities, careful identification of prisoners' race is unlikely to be a high 
priority for admitting officers.^ A relatively high proportion of prisoners are 
probably either not racially classified or are given designations that would be 
different if the officers had more time. We have no means of assessing the extent of 
this potential limitation. 

A recent change in the ministry classification system makes investigations of trends 
over time difficult. Three of the groups are the same - white. Aboriginal and 
Oriental. However, the initial "black or brown" category was divided into "black" 



More detailed informalion about the methodology and findings of this study are available in our Technical Volume. 
See Appendix B. 

These data are based on admissions, not persons. An individual imprisoned more than once in a year is counted as a 
separate admission on each entry into the prison system. 

Ministry policy, we understand, assumes that correctional officers ask prisoners to self-identify race according to 
prescribed categories. Our description of practice is based on what we learned from correctional officers in the 
prisons. 

The Ministry has been collecting this information for many years and storing it on computer. Until approached by 
the Commission, however. Ministry staff told us they had not attempted to aggregate, process or publish it. 



Racism in Justice: Prison Admissions 69 



and "East Indian" under the new systein, and a new category of "Arabs" was 
added." 

This change in classification makes investigation of trends over time difficult. In 
order to investigate admission trends before and after June 1991 (specifically, from 
1986/87 to 1992/93), we used the five earlier categories and collapsed the post-June 
1991 categories of "black" and "East Indian" into one. However, because we know 
that the vast majority of these admissions were described as black in 1991/92 and 
1992/93, we report the changes over time as increases in admissions of black 
people. 

Finally, the Commission emphasizes that these data do not measure participation in 
crime. Nor do they even approximately measure punishment, since they do not 
include non-prison sentences such as probation or fines.^ They measure only prison 
admissions before trial and after conviction. As such they raise, but do not answer, 
the question of how prisoners came to be admitted to the institutions. 

In spite of the limitations, the data present a picture of prison admissions that cannot 
be ignored. Even if all of these obstacles are taken into account, the results are 
overwhelming. While the precise numbers may be open to challenge, their general 
thrust is irrefutable. 

Summary of findings 

Ontario prison data show that over the six-year period from 1986/87 to 1992/93 - 

• The number of prisoners described as black admitted to Ontario prisons 
increased 204%, while the number of white prisoners admitted increased 23%. 

• Black admissions to prisons serving the Metro Toronto area for drug 
trafficking/importing^ charges increased by several thousand percent. White 
admissions to the same prisons for drug trafficking/importing also increased, in 
some prisons by large percentages, but nowhere near as much as the growth in 
black admissions. 

Data from 1992/93 show that among total admissions - 



t 



The category "Other/Unknown" continues under the new system, but because of the other changes it may be used 
differently. For example, under the old system many people of "Arab" heritage were probably classified as 
"Other/Unknown"; under the new system, they are placed in a separate category. 

The Ministry does not collect post-sentence data about the race of people who are fined or given community-based 
penalties. 

"Trafficking/importing" is the category the Ministry used in collecting these data, and includes the offence of 
possession for the purposes of trafficking. To the best of our knowledge, it is not possible to separate the different 
charges in the data for this category of admissions 



70 SETTING THE SCENE 

• Both men and women described as black or Aboriginal are over-represented 
relative to their proportions in the provincial population, while those described 
as Asian, East Indian or Arab are under-represented. 

• Although many more black and Aboriginal men are in jail than black and 
Aboriginal women, women described as black or Aboriginal are more over- 
represented among prison admissions than are men described as black or 
Aboriginal. 

Data from 1992/93 on remand* and sentenced admissions show that - 

• People described as black, Asian, South Asian and Arab are admitted to prison 
at much higher rates before trial than after conviction, while people described as 
white or Aboriginal are admitted to prison before trial at about the same rates as 
after conviction. (As noted above, people described as Asian, South Asian and 
Arab are not over-represented among total admissions.) 

Data from 1992/93 on the offences leading to admission to prison show that - 

• Persons described as black are most over-represented among prisoners charged 
with drug offences, obstructing justice and weapons possession. 

• Persons described as black are most under-represented among prisoners charged 
with impaired driving offences. 

Prison admissions over time: 
The growth of racial inequality 

Statistics Canada's profile of ethnic groups reports 158,140 black residents in 
Ontario in 1986.'" By 1991, the black population consisted of 215,775 residents," an 
increase of 36.4% while the population of the province as a whole grew by 10.8%. 
Thus between 1986 and 1991, the Ontario black population grew from 2.4% to 3.1% 
of the province's total population.^ 

The growth in black admissions to Ontario prisons over a similar period was much 
higher. There were 4,205 black admissions in 1986/87, and three times that number 
(12,765) in 1992/93. The more recent statistic shows that black people account for 



"A remand is an adjournment of a case when the court fixes the time and place of the next hearing." (I. Bing, 
Criminal Procedure and Sentencing in the Magistrate's Court (3rd ed.) (London: Sweet and Maxwell, 1994), p. 37.) 
If the accused has not yet had a bail hearing or has been ordered detained in custody pending trial, he or she is 
described as a "prisoner on remand." 

The sub-categories used to estimate the black population include only persons identified as "Black," "Ghanaian 
Black," "African Black n.i.e" and "Black - multiple origins" on the census form. At the Commission's request. 
Statistics Canada generated a detailed profile of Ontario's black population in 1991, using the more comprehensive 
"employment equity" categories. This method produced an estimate of 310,965 for the 1991 black population of 
Ontario. We used the lower estimate to calculate the change, however, because it used the same criteria as the 
narrower 1986 classification. 



Racism in Justice: Prison Admissions 71 



15% of prison admissions while they constitute only about 3% of the province's 
population. 

This six-year-period also saw a significant rise in white admissions to Ontario 
prisons, from 49,555 in 1986/87 to 60,929 in 1992/93. But this 23% increase is 
smaller than the overall rise in total admissions (40%) and pales in comparison with 
the 204% growth in black admissions.* Thus, despite the increase in white 
admissions, the percentage of white people among prison admissions dropped from 
84% in 1986/87 to 73% in 1992/93. 

Table 4-1: Adult admissions to Ontario prisons, 1986/87 and 1992/93 





1986/87 


1992/93 


Change between 
1986/87 & 1992/93 




% 


Number 


% 


Number 


% change 


Number 


White 


83.4% 


49,555 


73.1% 


60,929 


+ 23.0% 


+ 11,374 


Black/brown' 


7.1% 


4,205 


15.3% 


12,765 


+ 203.6% 


+ 8,560 


Asian 


0.9% 


549 


2.0% 


1,686 


+ 207.1% 


+ 1,137 


Aboriginal 


8.3% 


4,958 


5.9% 


4,921 


-0.7% 


-37 


Other/unknown- 


0.3% 


162 


3.7% 


3,100 


+ 1,813.6% 


+ 2,938 


Total 


100.0% 


59,429 


100.0 


83,401 


+ 40,3% 


+ 23,972 



Source: Ontario Ministry of the Solicitor General and Correctional Services 

1 . These are the original racial categories from the 1986/87 database. In order to make comparisons, the 
"Black/brown" category for 1992/93 includes people classified as either "Black" or "East Indian." 

2. In 1992/93 the "Other/unknown" category' includes people who were classified as either "Arab" or 
"Other" (categories not used in 1986/87). 

Trends in admissions of black and white men 

The disparity between white and black admissions over the six-year period is even 
more striking when we focus on prisons which serve the Metro Toronto area. We 
analyzed - 

• Metropolitan Toronto West Detention Centre: In 1986/87, about 75% of male 
admissions were white and about 11% were black. In 1992/93, white admissions 
amount to less than 60% and black admissions more than 30% (Figure 4- la). 

• Toronto Jail: In 1986/87, over 73% of admissions were white and about 13% 
were black. In 1992/93, white admissions amount to 54% and black admissions 
32% (Figure 4-lb). 



Table 4-1 shows an even larger (207%) growth in admissions described as Asian, but the 1986/87 base was 
relatively small. Persons described as Asians were not overrepresented among 1992/93 admissions. 



72 SETTING THE SCENE 

• Metropolitan Toronto East Detention Centre: In 1986/87, over 70% of 
admissions were white and about 13% were black. In 1992/93, white admissions 
amount to about 61% and black admissions 28% (Figure 4-lc). 

• Mimico Correctional Centre: In 1986/87, almost 80% of admissions were white 
and less than 10% were black. In 1992/93, white admissions amount to about 
61% and black admissions 31% (Figure 4-ld). 

• Maplehurst Correctional Centre: In 1986/87, 90% of admissions were white and 
less than 10% were black. In 1992/93, white admissions amount to about 57% 
and black admissions almost 40% (Figure 4-le). 

• Hamilton-Wentworth Detention Centre: In 1986/87, about 82% of male 
admissions were white and about 3% were black. In 1992/93, white admissions 
still amount to about 82%, but black admissions have risen to about 9% (Figure 4- 
If). 



Figure 4-1 a: Black and white male admissions to Metropolitan Toronto West Detention Centre, 

1986/87 to 1992/93 



c 

<D 
Q. 




1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



Sounx: Minlatiy ol the SoUcttor GenenI anj Ccfreclional Services 



gwhite 
-{-Black 



Racism in Justice: Prison Admissions 73 



Figure 4-1 b: Black and white male admissions to Toronto Jail, 
1986/87 to 1992/93 




40 
30 
20 
10 




i "&-^ 




1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



Source: Ministry of the Solicitor General and Correctional Services 



OVhIte 
•fBlack 



Figure 4-1 c: Black and white male admissions to Metropolitan Toronto East Detention Centre, 

1986/8710 1992/93 



100 

90 

80 

S 70 

§ 60 

°- 50 

40 



30 

20 

10 






1987/88 1989/90 1991/92 

1986/87 1988/89 199Q/91 1992/93 

Year 



Source: Ministry of the Sallcttor General and CarreakrialSeivlcet 



Eywilte 
4-Black 



74 SETTING THE SCENE 



Figure 4-1 d: Black and white male admissions to Mimicx) Correctional Centre, 

1986/87 to 1992/93 



c 

8 

Q. 




1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



Source: Ministry of the Solicitor General and ConecUonal Services 



E^ite 
-t-Black 



Figure 4-1 e: Black and white male admissions to Maplehurst Correctional Centre, 

1986/87 to 1992/93 



c 

8 




1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



Source: Ministry of the Solicitor General and Correctional Sen/Ices 



F^hlte 
l+Black 



Racism in Justice: Prison Admissions 75 



Figure 4-1 f: Black and white male admissions to Hamllton-Wentworth Detention Centre 

1986/87 to 199^/93 



100 



H 70 

§ 60 

o 

0- 50 

40 

30 

20 

10 





..(irrffl: 



:33]^' 



i I + 



1987/88 1983/90 1991/92 

1986/87 1988/89 1990/91 199?/93 

Year 



Sotraa: Ulnlsty of the Sc/ldtor Oaneial and ConscHonal S»vlcoi 



OftftiHe 
+Blad< 



Trends in admissions of black and white women 

Admissions of white women to the two major provincial prisons where women are 
held rose over the six-year period. In 1992/93, Metropolitan Toronto West Detention 
Centre (women) admitted 52% more white women than in 1986/87. At Vanier Centre 
for Women, the increase in white female admissions was 59%.' Increases in black 
female admissions, however, are much larger. In 1992/93, Metro West admitted 
148% more black women than in 1986/87; at Vanier, the increase was 630% (Figure 
4-2). 

The two prisons differ in the proportions of black and white women admitted. 



These percenuge changes are greater than for white male admissions at any of the selected prisons for men, which 
suggests that the rate of imprisonment of white women is growing faster. Another possibility with regard to 
sentenced prisoners is that more white men may have been sentenced to prison terms in federal institutions in 
1992/93. In that case, what looks like a relatively small increase in admissions of white men to provincial 
institutions could have been supplemented by larger increases in admissions of white men to federal prisons. Further 
research is necessary on this and other possibilities. 



76 SETTING THE SCENE 



Figure 4-2: Increase in female admissions to selected Ontario prisons, 
1986/87 to 1992/93, by racial group 


Percent increase 


■ 


630 






aWhite 
■Black 








200- 


148 






100- 




52 


H 


59 
















Metro West Vanier 




Source: Ministry of the Solicitor General and Correctional Services 



Figure 4-3a: Black and white female admissions to Metropolitan Toronto West Detention Centre, 

1986/87 to 1992/93 



Q. 




1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



Souice: UtiMry ol the ScUdtv General and ConecUon^ Senioes 



igwtjite 
l+Black 



Racism in Justice: Prison Admissions 77 



Metropolitan Toronto West Detention Centre (women): The proportions of 
white women among admissions to this prison show only minor fluctuations over 
the six-year period. In 1986/87, 60% of admissions were white; in 1992/93, 62%. 
By contrast, the percentage of black women among admissions shows a steady 
increase, from 18% of the total in 1986/87 to almost 30% in 1992/93 (Figure 4- 
3a). These findings suggest that in this prison black women are not replacing 
white women but women from another racialized group. 

Vanier Centre for Women: The proportions of white women among admissions 
to this prison appear to decline over the six-year period. In 1986/87, more than 
70% of admissions were white; in 1992/93, less than 60%. There is, however, a 
significant spike in 1991/92: white admissions jumped from 62% to 75% of the 
total, before declining the next year to a low of 58%. The percentage of black 
women among total admissions rose in each year since 1986/87, except 1991/92. 
Over the six-year-period, black women have gone from 9% of total admissions to 
over 30% (Figure 4-3b). These data suggest that black women are replacing white 
women at Vanier. 



8 

a. 



Figure 4-3b: Black and white female admissions to Vanier Centre for Women, 

1986/87 to 199?/93 



100 
90 
80 
70 
60 
50 
40 
30 
20 
10 





gwhite 
-l-Black 



1987/88 1989/90 1991/92 

1986/87 1988/89 1990/91 199^/93 

Year 



S<xn«: Uktiatry of m« Solkiitor Qtrmal and Cornalonal Sarvtcm 



78 SETTING THE SCENE 



Figure 4-4: Increase in admissions for drug trafficking/importing 
to selected Ontario prisons, 1986/87 to 1992/93 



Toronto Jail 



^ 



790 



1 204 

Metro East -^^^^^^_ 


^^^^ 2,914 




286 





□White 
■Black 



3,890 



Vanler 




5,200 



1,000 2,000 3,000 4,000 5,000 

500 1,500 2,500 3,500 4,500 5,500 

Percent increase 

Source: Ministry of the solicitor Gerteral and Correctional Services 



Trends in black and white admissions on drug 
trafficking/importing charges 

The reported increases in black and white admissions cover a range of charges, but 
one category dominates: drug trafficking/importing.' Changes in black and white 
admissions for these charges at four of the Toronto-area men's prisons and at Vanier 
Centre for Women are summarized in Figure 4-4. Increases from 1986/87 to 1992/93 
in the numbers of white prisoners admitted for drug trafficking/importing ranged from 
25% at Maplehurst to 667% at Vanier. These increases in white admissions are large 
at most of the prisons but appear minor when compared with changes in admissions of 
black prisoners on the same charges. The Toronto Jail, with a 790% increase in the 
number of black admissions, showed the smallest change. At Metro East the increase 
is 2,914%, at Maplehurst 3,300%, and at Metro West (men) 3,890%. The biggest 
increase is at Vanier, which in 1992/93 admitted 5,200% more black women 
convicted of trafficking/ importing drugs than in 1986/87.^ 



This category, used by the Ministry, does not separate importing from trafficking charges. Other research that we 
conducted, however, indicates that charges of trafficking and possession for the purposes of trafficking are far more 
common against men than importing charges. Women are more fikely to be charged with importing drugs. 



In part, the percentage increase is in the thousands because of the small numbers involved. In 1986/87, only one 
black woman was admitted to Vanier Centre for Women on this charge. In 1992/93, 53 black women were admitted 
for drug trafficking/importing. More details about the number of admissions are in the Technical Volume. See 
Appendix B. 



Racism in Justice: Prison Admissions 79 



These changes are reflected in the proportions of black and white prisoners admitted 
on drug trafficking/importing charges in each prison. The data show that in all five 
prisons most 1986/87 traffic king/ importing admissions were white, but by 1992/93 the 
majority are black. 

• Toronto Jail: 31% of drug trafficking/importing admissions in 1986/87 were 
black and 68% white. In 1992/93, 62% of admissions in this category are black 
and 30% white (Figure 4-5a). 

• Metropolitan Toronto West Detention Centre (men): 11% of drug 
trafficking/importing admissions in 1986/87 were black and 86% white. In 
1992/93, 56% of admissions in this category are black and 42% white (Figure 4- 
5b). 



Figure 4-5a: Black arxl white admissions to Toronto Jail for drug trafficking/importing, 

1986/8710 199^93 



100 
90 
80 
70 
60 



a. 50 

40 
30 
20 
10 






1987/88 198W90 1991/92 

1986/87 1988/89 1990/91 1992/93 

Year 



SaroKhllnllrfi/tmSoBcltorQtnenlindCaTactai^Savlom 



gwhite 
-l-Black 



Metropolitan Toronto East Detention Centre: 13% of drug trafficking/importing 
admissions in 1986/87 were black and 86% white. In 1992/93, 56% of admissions 
in this category are black and 39% white (Figure 4-5c). 



80 SETTING THE SCENE 



Figure 4-5b: Black and white admissions to Metropoiitan Toronto West Detention Centre 
for dnjg traffiddng^mporting, 1 986/87 to 1 99?/93 

100 


90 






80 
£ 70 

1 ^ 
<2 50 

40 

30 

20 

10 




Cff I III 




r\ 1 ^ 1 




^^^ ^"^S-~_ ■ 


\ 










H- 




gWhite 
+Black 






"^ 








tIv ^ y^ i 






; Y] \,^ \ 




V \ \ ■ \ 




- \ ■ ■ 


SounxUhlt 


1987/86 1989^ 1991/92 

1966/87 1988/69 199(V91 1992/93 

Year 

vyaltvScllduiGvianlanlCoenalonaSSanioat 









Rgure 4-5c: Biack and white admissions to Metropoiitan Toronto East IDetention Centre 
for dmg trafflcWng/importJng, 1 986/87 to 1 99?/93 

100 


90 

80 

e 70 

\ ^ 

O- 50 

40 
30 
20 
10 
n 
















































^yvhtte 
-l-Black 








-1 




; / '^-mr-.^^ 










] 






^^^^^^^ 






^Y^^^^^r^^ 










SoutoKUMm 


1967/88 1969/90 1991/92 

1966/87 19nfV89 199G/91 1992/93 

Year 

ly or M SoUur OinM/ imf Conwttint/ Svvlon 









Racism in Justice: Prison Admissions 81 

• Maplehurst Correctional Centre: 7% of drug trafficking/importing admissions in 
1986/87 were black and 93% white. In 1992/93, 68% of these admissions are 
black and 30% white (Figure 4-5d). 

• Vanier Centre for Women: 14% of drug trafficking/importing admissions in 
1986/87 were black and 86% white. In 1992/93, 53% of admissions are black and 
47% white (Figure 4-5e). 



^ 
£ 



Figure 4-5d: Black and white admissions to Maplehurst Correctional Centre 
for drug trafficking/importing, 1986/87 to 199^93 



100 
90 
80 
70 
60 
50 
40 
30 
20 
10 





gMiitB 

-l-Black 



1987/88 198W90 1991/92 

1986/87 198^89 1990/91 1992/93 

Year 



Source: MlrMrycflheSollcllcraenaral and CorracllontlSemcai 



Comment on the growth of racial inequality in admissions 

These prison admission trends are shocking. Over only six years, the admission of 
black persons to prison increased dramatically, especially for drug-related offences. 
What explains these remarkable trends? 



Two general factors are evident: expansion of prisons and changes in criminal justice 
practices. During the 1980s, the province embarked on a large prison expansion 
program. By 1992, Ontario's prison capacity was 30% higher than in 1985. 
Meanwhile, Quebec and British Columbia maintained their prison capacities at 1985 
levels. In 1992, Ontario's officially recorded crime rate was about the same as 
Quebec's, but the Imprisonment rate was one-third higher.'^ Between 1985 and 1992, 
British Columbia experienced a much higher population growth than Ontario and 
higher crime rates, but in 1992 Ontario's imprisonment rate was one-third higher. 

Expansion of Ontario's prisons is clearly associated with overall increases in prison 
admissions. Why, though, have admissions of black women and men grown so much 



82 SETTING THE SCENE 



Figure 4-5e: Black and white admissions to Vanier Centre for Women 
for drug trafficking/importing, 198^87 to 199^93 



E 

<D 
0. 



100 
90 
80 
70 
60 
50 
40 
30 
20 
10 




+Black 



1987/88 198S^ 1991/92 

1986^87 1988/89 1990/91 199^/93 

Year 



Souroe: UMttry ol Ihe SoBcKor Qenenl »ni CorvcUcnal Servloet 



faster than admissions of white women and men? At least part of the answer is that 
the so-called "war on drugs" has different impacts on white and black people. 

From the mid-1980s, Canada has followed the United States in emphasizing law 
enforcement as a primary strategy to control drug use.' As in the U.S., one strategy 
has been to attempt to reduce the supply of drugs by convicting and imprisoning large 
numbers of suppliers and users. Intensive police operations attack street-level trading 
and the couriers who bring drugs across Canada's borders to distributors. Such 
policing is supported by vigorous prosecution, and efforts to imprison convicted 
offenders no matter how small the amount of drugs involved.^ 

This emphasis on convictions and imprisonment also serves other important purposes. 
Convictions and prison sentences can be counted and publicized to reassure the public 



In 1987, the federal government established "Canada's Drug Strategy," which planned to spend some $210 million 
in new ftinds on the entire field of substance abuse over five years (See Health and Welfare Canada, Canada 's Drug 
Strategy: Phase II (Ottawa; Supply and Services Canada, 1992)). Seventy percent of this money was allocated to 
measures to reduce the demand for drugs, such as education, treatment and rehabilitation. Recent research indicates, 
however, that the traditional prohibition approach continued to dominate Canadian drug policy over that period: 
Patricia G. Erickson, "Recent Trends in Canadian Drug Policy: The Decline and Resurgence of Prohibitionism" 121 
Daedalus - Journal of the American Arts and Sciences (1992), p. 239; Benedikt Fischer, "'Maps' and 'Moves'" 
(1994) 5 International Journal of Drug Policy 70. 



For example, the Ontario Court of Appeal has generally supported significant prison terms for trafficking, in the 
absence of extenuating circumstances. See the review of Canadian case law in Clayton C. Ruby, Sentencing , fourth 
edition (Toronto: Butterworths, 1994), pp. 683-713. 



Racism in Justice: Prison Admissions 83 



responding to concerns about drug use and drug dealing. But because of the 
organization of drug distribution, this response tends to focus on relatively minor 
offenders and offences. 

Drug distribution is organized in a classic pyramid fashion. A few individuals at the 
top invest heavily to protect themselves against exposure. At the bottom are street 
dealers and couriers, who are easy to recruit and replace. Though law enforcement 
against those at the top of the pyramid may greatly reduce the supply of certain drugs, 
this is costly, time-consuming, difficult and seldom successful. Enforcement against 
street dealers and couriers is much easier and brings quick success in the form of 
convictions and imprisonment. But since individual street dealers and couriers 
typically handle relatively small quantities of drugs and are easily replaced, 
enforcement directed at them may have little or no effect on the supply of drugs. '^ 
(Even enforcement against persons at the top of the pyramid may be remarkably 
unsuccessful in achieving any permanent reduction in the availability of certain drugs.) 

How does this "war on drugs" produce racial inequalities in imprisonment? Neither 
patterns of drug use nor control over drug supply explain our findings. No evidence 
shows that black people are more likely to use drugs than others or that they are over- 
represented among those who profit most from drug use. Events of the last few years 
do show, however, that intensive policing of low-income areas in which black people 
live produces arrests of a large and disproportionate number of black male street 
dealers. Similarly, intensive policing of airline travellers produces arrests of a smaller, 
but still disproportionate, number of black female couriers. Once the police have done 
this work, the practices and decisions of crown prosecutors, justices of the peace and 
judges operate as a conveyor belt to prison. '"' 

The futility of using heavy law enforcement against minor suppliers and couriers to 
control drug use is well documented.'^ Experts in drug policy are clear: law 
enforcement directed at small-scale traders and couriers has an insignificant impact on 
drug use. It is a waste of resources. Many police officers, lawyers and some judges 
(including some we consulted) acknowledge this.' They know that effective drug 
policies emphasize treatment and prevention of abuse. Such strategies focus resources 
on existing and potential drug users, not petty suppliers. Without a local demand for 
drugs, street trading would disappear and small-scale couriers would not be recruited. 

It is clear from our findings that in Ontario, as in many parts of the United States,'* 
one effect of the "war on drugs," intended or not, has been the increase in 
imprisonment of black people. This is an intolerable consequence of a policy that 
experts recently described as "mistaken, harmful and at times absurd."" We return to 
the racial inequalities produced by the "war on drugs" in Chapters 5 and 8, where we 



A recent study by the Addiction Research Foundation documents considerable concern among some judges and 
lawyers about the futility of such law enforcement Patricia G. Erickson and J. Cohen, Alcohol and Other Drugs in 
the Criminal Justice System: Perceptions of Justice System Personnel (preliminary report) (Toronto: Addiction 
Research Foundation, forthcoming). 



84 SETTING THE SCENE 

also show how the exercise of discretion produces disproportionate imprisonment of 
black people. 

The particular strategies selected in the so-called "war on drugs" account for much of 
the growth of racial inequality in prison admissions between 1986/87 and 1992/93. 
However, not all of this inequality is due to drug charges. To find out more about the 
patterns of racial inequality among admissions, the Commission analyzed data for 
1992/93, tlie first year of our mandate, in more detail. 

Prison admissions in 1992/93: 
The details of racial inequality 

Youth admissions 

The Commission's Terms of Reference mandate "particular attention to the impact of 
systemic racism on racial minority youth." Unfortunately, lack of data defeated our 
attempts to focus on youth admissions to prison. We encountered two problems. 

First, the Ministry of Community and Social Services, the government agency 
responsible for incarceration of young people aged 12 to 15, does not keep 
information about their race. Consequently, we have no means of monitoring the 
population of young people in instiuitions run by that Ministry. 

Second, although information about prison admissions of youths aged 16 and 17 is 
available, we were unable to obtain accurate demographic estimates for this age 
group. The age categories used by Statistics Canada in census estimates are not the 
same as the age group used for youths under the jurisdiction of the Ministry of the 
Solicitor General and Correctional Services. Consequently, we cannot calculate rates 
of admission by race or charges, but only suggest the general relationships between 
the youth population and prison admissions. These general findings show significant 
racial differentials in prison admissions of youths aged 16 and 17. 

Youth admissions by sex and race 

In 1992/93 a total of 4,705 youths aged 16 and 17 were admitted to prisons run by 
what was then the Ministry of Correctional Services. Of these admissions, 4,369 
(93%) are male. Prisoners described as white dominate both male and female 
admissions, amountmg to 72% of male, 71 % of female and 72% of total youth 
admissions in this age group. 

At 13%, prisoners described as black are the second largest group of admissions. The 
representation of black young women among young female admissions is strikingly 
low at 1.5%, in stark contrast to the findings about adult admissions reported below. 

Of 16- and 17-year-old admissions, 7% are described as Aboriginal. Young 
Aboriginal women make up 22% of female youth admissions, while only 6% of male 
youth admissions are young Aboriginal men. 



Racism in Justice: Prison Admissions 85 



Youths classified as Asian, East Indian and Arab together represent 4% of female, 
5% of male and 5% of total youth admissions. 



Table 4-2: Admissions of youths aged 16 and 17 to Ontario prisons, by sex and 

race, 1992/93 



White 



Black 



Aboriginal 



Asian 



East Indian 



Arab 



Female 



Male 



70.8% 



1.5% 



22.0% 



2.4% 



0.3% 



0.9% 



Other/unknown 



Total percent* 



Total number of admissions 



2.1% 



71.9% 



13.3% 



6.3% 



3.0% 



1.3% 



0.8% 



3.3% 



100.0% 



336 



99.9% 



4,369 



Source: Ontario Ministry of the Solicitor General and Correctional Services. 
* Percentage estimates may not add up to 100% due to rounding. 



Total 



71.8% 



12.5% 



7.5% 



3.0% 



1.3% 



0.8% 



3.2% 



100.1% 



a 



4,705 



Youth admissions by reason for admission and race 

Youths aged 16 and 17 are more likely than adults to be held in prison before trial. 
Of the 4,705 admissions in 1992/93, 70% are on remand, 19% are sentenced, and 
11% are held for other reasons (Figure 4-6). 

Table 4-3 shows that youths described as white are a higher proportion of sentenced 
(76%) than remanded (70%) admissions, while for youths described as black the 
reverse is true. Black youths represent 13% of remanded and 10% of sentenced 
admissions in 1992/93. There is little difference between proportions of admissions of 
youths described as Aboriginal on remand and after sentencing. 



86 SETTING THE SCENE 



Figure 4-6: Admissions of youths aged 16 and 17 and adults to Ontario prisons, 
by reason for admission, 1992/93 



80 

70 

60 

I 50 
a. 40 

30 

20 

10 





70 




19 




aYouth 
■Adults 



Remanded Sentenced Other reasons 



Source: Ministry a/ Itte Solicitor General ana Correctional Services 



Table 4-3: Admissions of youths aged 16 and 17 to Ontario prisons, by race and 

reason for admission, 1992/93 





Remanded 


Sentenced 


Other 
reason 


Total 


White 


70.4% 


76.0% 


73.4% 


71.8% 


Black 


13.1% 


10.0% 


13.1% 


12.5% 


Aboriginal 


7.4% 


7.7% 


7.2% 


7.5% 


Asian 


3.4% 


2.2% 


1.6% 


3.0% 


East Indian 


1.4% 


0.7% 


1.2% 


1.3% 


Arab 


0.9% 


0.7% 


0.2% 


0.8% 


Other/unknown 


3.3% 


2.8% 


3.2% 


3.2% 


Total percent* 


99.9% 


100.1% 


99.9% 


100.1% 


Total number of admissions 


3,289 


919 


497 


4,705 



Source: Onlario Ministry of the Solicitor General and Correctional Services 
* Percentage estimates may not add up to 100% due to rounding. 



Racism in Justice: Prison Admissions 87 

Adult admission totals: an overview 
Adult admissions by sex and race 

Of the 83,401 adult admissions to Ontario's prisons in 1992/93, 76,403 (92%) are 
male. Among both male and female admissions, prisoners described as white are by 
far the dominant racial group. They make up ahnost three-quarters of male admissions 
and just over two-thirds of female admissions. Of the total admissions for both sexes, 
73% are white. 

Broken down by sex as well as race, the data show that adult prisoners described as 
black are a higher proportion of female admissions (17%) than of male admissions 
(13%). A similar pattern is true of prisoners described as Aboriginal: 9% of female 
admissions compared with 6% of male admissions. Three other racial groups included 
in the 1992/93 data - Arab, East Indian and Asian - make up small proportions of 
male, female and total adult admissions. 

Table 4-4: Adult admissions to Ontario prisons, by sex and race, 1992/93 





Female 


Male 


Total 


White 


67.4% 


73.6% 


73.1% 


Black 


17.1% 


13.4% 


13.7% 


Aboriginal 


9.2% 


5.6% 


5.9% 


Asian 


2.0% 


2.0% 


2.0% 


East Indian 


1.0% 


1.6% 


1.6% 


Arab 


0.3% 


0.8% 


0.7% 


Other/unknown 


3.1% 


3.0% 


3.0% 


Total percent* 


100. 1 % 


100.0% 


100.0% 


Total number of admissions 


6,998 


76,403 


83,401 



Source: Ontario Ministry of the Solicitor General and Correctional Services 
* Percentage estimates may not add up to 100% due to rounding. 



Adult admissions by reason for admission and race 

People are held in prison for a variety of reasons. The vast majority are awaiting 
criminal trials or serving sentences, while others are held for reasons such as non- 
payment of fines, immigration processing and breaches of parole conditions. Of the 
83,401 adult admissions in 1992/93, 41,195 (49%) are in custody awaiting further 
processing of charges and 36,188 (43%) are sentenced. Only 6,018 admissions (7%) 
are for other reasons. 



88 SETTING THE SCENE 

As shown in Table 4-5, white prisoners make up 80% of adult admissions after 
sentencing. Though still the largest group, white admissions are only 69% of 
admissions on remand. Their representation among admissions for other reasons, at 
62%, is also noticeably lower than among the sentenced population. 

By contrast, persons described as black make up a higher proportion of remanded 
(16%) than sentenced (9%) admissions and about one-quarter of the "other" category. 
Persons described as Aboriginal amount to 6% of both remanded and sentenced 
admissions, but only 3% of those admitted for other reasons. 

Table 4-5: Adult admissions to Ontario prisons, by race and reason for 

admission, 1992/93 





Remanded 


Sentenced 


Other 
reason 


Total 


White 


68.9% 


79.9% 


61.5% 


73.1% 


Black 


16.1% 


9.0% 


25.8% 


13.7% 


Aboriginal 


6.0% 


6.3% 


2.8% 


5.9% 


Asian 


2.9% 


1.0% 


2.1% 


2.0% 


East Indian 


2.0% 


1.1% 


1.8% 


1.6% 


Arab 


0.9% 


0.4% 


1.4% 


0.7% 


Other/unknown 


3.2% 


2.3% 


4.6% 


3.0% 


Total percent 


100.0% 


100.0% 


100.0% 


100.0 

% 


Total number of admissions 


41,195 


36,188 


6,018 


83,401 



Source: Ontario Ministry of the Solicitor General and Correctional Services 



Adult admission rates: A more precise measure 

Analysis of admission rates - the number of admissions per 100,000 community 
members in Ontario - provides a more vivid and accurate picture of racial disparities 
than simple totals.'* Unfortunately, here we once again encountered problems of data 
collection. 

Ontario's prison system and the federal census use different methods of classification 
and different categories. The Ministry uses race and includes a category for white 
people. The census, by contrast, uses the concept of ethnicity. Instead of a "white" 
category there is a variety of European national or regional affiliations: British, 



Racism in Justice: Prison Admissions 89 

Scottish, Italian, Portuguese and so on. Statistics Canada can estimate "visible 
minority" populations from the census data, but has no specific estimate of Ontario's 
"white" population. To obtain the number of persons in this group, we therefore 
subtracted estimates for identified visible minority populations from the province's 
total population. 

Admission rates by race 

Figure 4-7 shows adult prison admission rates for the six racial designations used by 
the Ministry of the Solicitor General and Correctional Services. Behind the total 
admission rate of 827 per 100,000 Ontarians is considerable variation among the 
groups. In particular, while adults described as black are admined at five times the 
rate of adults described as white, and adults described as Aboriginal at almost three 
times, those described as Asian are admitted at half the rate of white adults. 



Figure 4-7: Total adult prison admission rate to Ontario prisons. 
1992/93, by racial group 




3,686 



500 1,000 1,500 2,000 2,500 3,000 3.500 4,000 

Admissions per 100.000 members of racial group 



Source: Umstry at IheSokitar General and CorraaionalSeivkxa 



Admission rates by race and sex 

Prison admission rates of women show greater racial inequality than admission rates 
of men. Whereas black men are admitted to prison at a rate just over five times that 
of white men in 1992/93, die admission rate for black women is almost seven times 
that of white women. Similarly, the admission rate for Aboriginal women was almost 



90 SETTING THE SCENE 



five times that of white women, while Aboriginal men are admitted at less than three 
times the rate of white men.' 

Admission rates before and after trial 

Analysis of these rates by type of admission and racial group reveals two striking 
patterns: the rate of pre-trial admission is significantly higher than the rate after 
sentence for all racialized groups except Aboriginal people. White people, though, 
are, imprisoned before trial at about the same rate as after sentence. Particularly 
noteworthy is the dramatic difference between the pre-trial and sentenced admission 
rates of adult prisoners described as Asian (Figure 4-8). 

Table 4-6: 1992/93 Adult prison admission rates, by sex and race 





Male 

prison admissions 

per 100,000 


Female 

prison admissions 

per 100,000 


Total 


1,542.5 


136.4 


White 


1,326.4 


107.3 


Black 


6,976.6 


730.7 


Aboriginal 


3,600.9 


502.7 


Asian 


669.9 


55.5 


East Indian 


842.0 


48.3 


Arab 


845.3 


39.5 



Source: Ontario Ministiy of the Solicitor General and Correctional Services 

Admission rates by specific charges 

Behind the overall ratio of five to one in black to white adult admission rates is 
considerable variation among charges. For example, in 1992/93, the black admission 
rate for drinking and driving offences (34 per 100,000) is half of the white rate. By 
contrast, the 1992/93 black admission rate for obstructing justice (112 per 100,000) is 
ten times higher than the white admission rate (11 per 100,000). 

For each of four charges - trafficking/ importing drugs, possession of illegal drugs, 
obstructing justice and weapons possession - black admission rates are more than nine 
times greater than white admission rates. As Figure 4-9 shows, the inequality in 
admission rates for trafficking/importing drugs is by far the largest among the four 
offence categories. The ratio of black-to-white admission rates on this charge is 22:1. 



The precise ratios are 5.3 to I for black men to white men; 6.8 to 1 for black women to white women; 4.7 to I for 
Aboriginal women to white women; and 2.7 to 1 for Aboriginal men to white men. 



Racism in Justice: Prison Admissions 91 



Figure 4-8: Remand and sentenced adult admission rates to Ontario prisons, 
1 992/93, by racial/ethnic group 



2,136 




H \ \ \ \ \ \ \ \ \ 1 

400 800 1,200 1,600 2,000 2,400 

200 600 1,000 1,400 1,800 2,200 

Admissions per 100,000 members of racial group 



Source: Ministry of the Solicitor Gerteral and Correctional Sen/Ices 



Figure 4-9: Black and white adult admission rates to Ontario correctional 
institutions, 1 992/93, by selected criminal offences 



Obstruction of justice 

Weapons offences 

Daig possession 

Drug trafficking* 



11 



1^Hl12 

h2i 



188 



192 



□White 
■Black 




100 200300400500600 700 800 
50 150 250 350 450 550 650 750 

Admissions per 1 00,000 black or white people 



* Includes drug trafflckinfl/lmportlng 
Source: umiatry ol ttM Solicitor General anO Coirecbonal Service 



92 SETTING THE SCENE 

Racial differentials in admissions are larger at the pre-trial stage (remand) than after 
conviction. With regard to - 

• drug trafficking/importing charges, black remand rates are 27 times higher than 
white remand rates in 1992/93. The admission rate ratio for convicted persons, 
though still very high, drops to 13:1. 

• drug possession charges, black remand rates are 15 times higher than white 
remand rates. The admission rate ratio for convicted persons, though still high, 
drops to 7:1. 

• obstructing justice charges, black remand rates are 13 times higher than white 
remand rates. The admission rate ratio for convicted persons, though still high, 
drops to 7:1. 

• weapons charges, black remand rates are 9 times higher than white remand rates. 
The admission rate ratio for convicted persons is about the same at 8: 1. 

Other variables 

Differences other than race likely account for some of the inequality in prison 
admissions. Age, unemployment and poverty, for example, are all known to be 
associated with the offences that are policed, prosecuted and punished most vigorously 
in Ontario and similar jurisdictions.* And black and Aboriginal Ontarians are younger, 
poorer and more likely to be unemployed than those of British ethnicity. 

In the 1991 census, for example, 57% of black males and 65% of Aboriginal males 
are under 30 years of age, compared with 46% of males of British ethnicity and 45% 
of all Ontario males. Unemployment rates show dramatic differences by ethnicity, 
especially among young males. In 1991, for example, 26% of black males compared 
with 15% of British and 17% of all males in Metro Toronto aged 15 to 24 are 
unemployed (Figure 4-10). A similar pattern exists for women in the same age group, 
as Figure 4-11 shows. In 1991, 20% of black and 16% of Aboriginal, compared with 
1 1 % of British and 13% of all young women in Metro, cannot find work. 

Black men and women in Metro, as well as Aboriginal men and women, are also 
considerably poorer than men and women of British ethnicity, and their incomes are 
lower than the average for Metro residents. 

Examination of census estimates also suggests that the category "Asian" used in 
Ministry of Correctional Services admissions statistics may mask important variations. 
In Toronto, for example, the 1991 census shows 28% of Vietnamese men aged 15 to 
24 as unemployed, compared with 14% of men in the same age group who identify 
themselves as Japanese. Yet prisoners from both communities would be classified in 
prison admissions data as Asian. Consequently, low numbers of admissions from 
Asian communities that are relatively wealtiiy and established could obscure disturbing 



See the discussion of differential enforcement below. 



Racism in Justice: Prison Admissions 93 



Figure 4-10: Unemployment rate by racial/ethnic group 
males aged 1 5 to 24 years in Metro Toronto, 1 991 



Black 

Latin American 

South-East Asian 

Chinese 

West Asian/Arab 

Aboriginal 

South Asian 

Total population 

British 

French 

Filipino 



Source: Statistics Canada ■ 


H^^^^IH^^^^^^^H^H^H 26.1 


■^^^^■^^^^^^^^^■^■■24.1 


^^^^^H^^^^^^^H^^^I 22.7 


^^^^■^^^^^^■^^H 19.8 


^^■■^^^^^^^^^Bl 19.7 


M^^^^^^^^^^^^M ^^'3 


HHIriH^^^^^^^H 18.1 










^ 14.3 

|12.9 

■ 1 1 1 , 


5.0 

1391 Census 


10.0 

Perce 


15.0 20.0 25.0 30.0 
nt unemployed 


■ 1 


Figure 4 
female 

West Asian/Arab | 

Black 1 

South-East Asian j 

South Asian j 

Aboriginal | 

Latin American j 

Chinese j 

Total population j 

British 1 

French j 

Filipino 1 

0.0 

Source: StaUsUcs Canada ■ C 


-1 1 : Unemployment rate, by racial/ethnic group, 
}s aged 15 to 24 years in Metro Toronto, 1991 


^^■iri^^l^^^^^^^^P 22.1 


^■■■^^^^^^^^■■■20.2 


^^^■^^^^^^^^■■20.1 








mi6.4 
H15.9 

mi5.7 












^^^1 


12.7 
1 




^^1 11. 




^9.9 




|8.5 


5.0 

■ensiaCviada 


10.0 15.0 20.0 25.0 30.0 
Percent unemployed 



94 SETTING THE SCENE 



Figure 4-1 2: Mean personal 
males aged 1 5 years and 


incx)me by racial/ethnic group, 
over in Metro Toronto, 1 991 


South-East Asian 

Latin American 

Black 

Filipino 

South Asian - 

West Asian/Arab 

Chinese 

Aboriginal 

Total population 

French 

British 














■ 
■ 


^H 






^HJH $25.8 


Hi 






m^^HI $27.0 








$0 

Source: Slattsdcs Canada ■ 


.0 $5.0 
1991 Census 


$10.0 $15.0 $20.0 $25.0 $30.0 $35.0 $40.0 $45.0 

Mean income (thousands of dollars) 



Figure 4-13: Mean personal incom 
females aged 1 5 years and over 


e, by racial/ethnic group, 
in Metro Toronto, 1991 

1 $14.9 


Latin American 

South-East Asian 

West Asian/Arab 

South Asian 

Black 

Chinese 

Filipino 

Aboriginal 

Total population 

French 

British 


I 




^^H 






















$0 

Source. Stattsdca CanaOa 


.0 $4.0 $8.0 $12.0 $16.0 $20.0 $24.0 $28.0 

Mean income (thousands of dollars) 



Racism in Justice: Prison Admissions 95 



patterns in tlie admission of prisoners from poorer, less established Asian 
communities.' 

Since we are unable to assess accurately the "ethnicity" of prisoners, we cannot be 
sure that these conditions apply in Ontario. Nonetheless, we note this possibility 
because the Commission has found serious and growing concerns within tlie 
Vietnamese community that large numbers of Vietnamese male youtlis and adults are 
being admitted to Ontario's prisons. 

Comment on the findings 

These findings clearly demonstrate that black people are vastly over-represented where 
the criminal justice system has its harshest impact - imprisonment. While the precise 
numbers may be open to debate, the Commission believes tlie patterns of inequality 
they reveal are reliable. 

These findings about 1992/93 admissions pose the general question of why black 
people, like Aboriginal people, are so over-represented among admissions to Ontario's 
prisons. They also raise two very specific questions. Why are pre-trial admission rates 
for black and other racialized people so much higher than sentenced admission rates, 
when corresponding rates for white and Aboriginal people are the same? And why are 
black and Aboriginal women even more over-represented than black or Aboriginal 
men among prison admissions? 

Taken alone, these findings do not explain racial inequalities in prison admissions, nor 
do they suggest solutions. Without a clear understanding of the problems, there can be 
little confidence that solutions will be effective. 

Understanding over-representation 

Why are black people over-represented among prison admissions? What explains the 
dramatic increase in the imprisonment of black women and men since 1986/87? Why 
is there such a large difference in imprisonment rates of black and white people for 
some offences and much smaller differences, or even under-representation of black 
people, for other offences? 

A superficial answer might be that the data "prove" that black people are inherently 
criminal. This explanation does not fit the facts. Equally superficial - and equally 
unconvincing - is the conclusion that all white police officers, lawyers and judges are 
blatantly racist and deliberately criminalize black people. 



A similar point has been made in Britain. There, "Asian" indicates groups that might identify themselves as "South 
Asian/East Indian" In Canada. In Britain this group is dominated by people of Indian ethnicity whose wealth and 
employment status are similar to those of white people. British people of Pakistani and Bengali ethnicity are 
considerably poorer, younger and less likely to have secure jobs. Analyses of British prison data have concluded that 
"Asians" are not over-represented among prisoners. More detailed recent studies, however, suggest that British 
people of Bengali and Pakistani heritage are over-represented among "Asian" prisoners, and may be over- 
represented in the prison population as a whole (Marian FitzGerald, "'Racism': Establishing the Phenomenon" in 
Racism and Criminology Dee Cook and Barbara Hudson, eds , (London: Sage, 1993). ) 



96 SETTING THE SCENE 

Consider the superficial view that race determines criminal behaviour, and that racial 
inequality in prison admissions merely reflects black people's inherent criminality. 
How could race cause people to commit criminal offences? Is the answer in biology - 
could a gene related to dark skin, curly hair and broad noses cause people to commit 
crimes? Would this gene lead black people to specialize in drug trafficking? Does a 
gene cause white people to drive after drinking alcohol? Does pale skin and straight 
hair, or a gene related to these characteristics, prevent people from obstructing 
justice? 

Consider also the dramatic increase in prison admissions of black people. How could 
a biological link between race and crime explain this? Surely the genetic make-up of 
black Ontarians did not suddenly change during the late 1980s and early 1990s. 

Most important, if biology causes criminality, why are only a small percentage of 
black Ontarians in conflict with the law? Even if each prison admission represented 
one individual (which is not the case),' 96 percent of black people were not admitted 
to prison in 1992/93. If a "race gene" caused black people to commit crimes, then 
most of Ontario's black residents, and few or no white Ontarians, would be in jail. 

Such questions are absurd, as is the belief that biology explains criminal behaviour. 
There is no such thing as a criminality gene, nor, more fundamentally, is there any 
scientific evidence of a race gene. As Stephen Jay Gould states: 

Intense studies ... have detected not a single "race gene" - that is a gene present 
in all members of one group and none of another. Frequencies vary, often 
considerably, among groups, but all human races are much of a muchness .... 
[T]he great preponderance of human variation occurs within groups, not in the 
differences between them .... 

Human groups do vary strikingly in a few highly visible characteristics (skin 
colour, hair form) - and these external differences may fool us into thinking that 
overall divergence must be great. But we know now that our usual metaphor of 
superficiality - skin deep - is literally accurate. " 

Clearly then, the dark skins and curly hair of black people do not cause criminal 
behaviour. Nor does some other genetic difference lead black people to commit 
crimes. Since biology is not destiny, the explanation of racial inequalities in prison 
admissions must lie elsewhere. 

Some people who rightly reject biological explanations of criminal activity find 
cultural ones persuasive. Recognizing that racial appearance cannot determine 
behaviour, they may think, nonetheless, that culture does. Are cultural propensities to 
criminality, violence or lack of respect for law and authority the reasons for racial 
differentials in admissions to Ontario's prisons? 



See Footnote t on page 68. 



Racism in Justice: Prison Admissions 97 



If all or some black cultures are inherently criminal, but white cultures are not, why 
are tlie vast majority of prison admissions people from white cultures? Why are most 
black people (like most white people) not in conflict with *he law? If black culture 
causes criminality, what explains the relatively low proportions of black admissions in 
1986/87 and tlie massive increase since tlien? 

Finally, how do cultural explanations of criminality account for what John Pitts calls 
"one of the few things we know with any certainty about the relationship between 
race and crime" - the evidence, documented in many countries, that crime rates 
amiong immigrants are lower than among persons born in Lhe country?'" Crime rates 
among descendants of immigrants, however, tend to be the same as or higher than 
crime rates of the dominant culture.^' If culture explains crime, why are members of 
the immigrant generation, who presumably have the allegedly criminal tendencies of 
an "alien" culmre in its strongest form, less likely to commit offences than their 
children and grandchildren raised in the culture of the new society? 

The answer, of course, is that cultural characteristics do not explain the evidence. As 
Pitts states. 

Crime rates are neither a simple product of the proclivities of individuals nor of 
the cultural penchant of particular ethnic groups but, rather, a product of the 
chances, choices and solutions available within the milieu they enter. The rise in 
crime rate among the second and subsequent generations of an immigrant group 
is a product of ... [the] process whereby people make an accommodation with, 
and establish ways of being within, a new social environment. In the process 
some "incoming" young people will adopt the strategies and behaviours of the 
established social group [where they live]."^ 

Cultures may be real and enriching forces in people's lives, but they are not "timeless 
and inexorable determinants of behaviour."--' They do not, in other words, dictate 
what people do. Culture cannot cause people to commit crimes or account for racial 
inequalities in prison admissions. Far from explaining anytliing, beliefs that some 
cultures are inherently violent, criminal, anti-social or disrespectful of law are 
stereotypes that racialize others. They promote constructions of races as real, different 
and unequal, and allow people to act as if such constructions were true. 

Cultural characteristics of specific racialized groups or minority groups in general 
clearly cannot explain racial differentials in prison admissions. So how do we explain 
these differentials in Ontario prisons? In jurisdictions where disproportionate 
imprisonment of black people has been openly recognized for years, research suggests 
two general explanations, which may overlap. One explanation emphasizes the 
influence of social and economic inequality on behaviour; the other points to 
differential enforcement of the criminal law, including racial discrimination in the 
administration of justice. 



98 SETTING THE SCENE 

Social and economic inequality 

Some studies of differential imprisonment emphasize failures to integrate black and 
other racialized people into the wider society. They draw on evidence of 
disproportionately high rates of unemployment and dead-end jobs among racialized 
people, particularly young adults. They also cite poor housing conditions and lack of 
educational opportunities. These studies make the important point that social and 
economic opportunities are racialized. That is, members of racialized groups are much 
more likely than members of non-racial ized groups to have limited opportunities. 
Since people with limited social and economic opportunities are most likely to be 
policed, prosecuted and punished as criminals,^'' racialized people are more likely than 
white people to be in conflict with the law. Thus they are over-represented at all 
stages of the criminal justice process, including prisons. 

Three important elements of this explanation are worth emphasizing. First, those who 
adopt it may generally accept that racialized people are over-represented in prison 
populations, at least in part, because of greater participation in some criminal 
activities." They do not accept, however, diat biology or culture is the reason for 
higher rates of participation. Nor do tliey always see racism in the wider society as 
the only contributing factor. 

According to tiiis view, the social and economic conditions of people's lives are 
crucial to their participation in criminal activity. The criminality rate should be the 
same for racialized and non-racialized people where these conditions are the same. If, 
on the other hand, opportunities are unequally distributed, members of the socially 
disadvantaged groups are likely to commit a higher proportion of crimes than others. 
If a higher proportion of a particular racialized group has limited opportunities, 
compared with otlier groups, then tlie average crime rate for this group is likely to be 
higher. 

Second, according to this approach sub-groups with similar life opportunities - in 
racialized and non-racialized communities alike - are likely to display similar levels of 
criminality. Young, unemployed white men living in areas of social stress and 
economic deprivation, for example, would be likely to commit crimes as their young, 
male, unemployed black neighbours. Conversely, as Pitts noted of the British context, 
"... the amount of street crime perpetrated by 28-year-old, male, British Afro- 
Caribbean chartered accountants is the same as that perpetrated by 28-year-old, male, 
British Caucasian chartered accountants, namely 0.0 per cent."^^ The point is that any 
difference in street crime rates of British Afro-Caribbean men and British Caucasian 
men arises because fewer of the former have opportunities for economic advancement. 

Finally, this viewpoint does not imply that lack of opportunities or social inequality 
causes individuals - whether white or racialized - to commit crimes. It does say, 
rather, that people with limited life-chances may be more likely to view some forms 
of criminal activity as more attractive or exciting than their other choices. ^^ They may 
see crime as a means to acquire material goods otherwise unobtainable. They may fail 
to respect the rules of a society that excludes them from its benefits. They may feel 



Racism in Justice: Prison Admissions 99 

they have much to gain and little to lose from criminal activity. Crime may make 
them feel powerful. It may add excitement to, or provide a means of escape from 
otherwise dreary lives. Crime, in short, may be a rational choice. 

Experts who make tliese observations do not, of course, excuse or condone the actions 
of any individual who harms others. They recognize that crime is a serious social 
problem, hurting immediate victims and the families and friends of victims and 
perpetrators. They know that fear of crime may severely restrict people's lives. But 
since imprisonment does not appear to deter or in any otlier way significantly to 
reduce crime, it is important to develop strategies likely to work ratlier than to 
continue with those known to fail. More emphasis on or investment in crime 
prevention, as opposed to punishment, is their answer. 

Differential enforcement 

Other explanations of racialized patterns in prison admissions also stress social and 
economic conditions, but from a different perspective. These conditions are seen as 
explanations of who is caught, not who commits crimes. ^^ Enforcement practices, 
rather than offending behaviours, are key. 

People who hold this view argue that involvement in criminal activity is not limited to 
an identifiable group of anti-social and marginal individuals. Criminality is instead a 
widespread social phenomenon in which many ordinary and apparently respectable 
people participate. Drawing on studies of employers, employees, taxpayers, retailers 
and service suppliers, police officers, university students, youths and drug users, and 
women and children abused by men, these experts conclude that with regard to crime 
"everybody does it" at least occasionally." 

If criminal activity is indeed widespread among the population, the explanation for 
racial inequality in prison admissions cannot be attributed mainly to disproportionate 
involvement in crime. Studies in Canada and elsewhere consistently show, for 
example, that more than 90 percent of young men say they have committed criminal 
offences.^" This indicates that variations in offending rates by race or economic class 
may be small. Variations in enforcement practices likely make the difference. 

Law enforcement is not the only possible response to crime, nor is it always 
desirable. Many studies suggest that law enforcement is costly, blunt and not very 
effective in reducing crime.'' Since law enforcement resources are finite, priorities 
must be established and variations in enforcement practices are inevitable. The critical 
question is what criteria are used to decide which offenders and which offences the 
criminal justice system should select. 

Formal and informal selection criteria are used in law enforcement. Experts suggest 
that these criteria make black and other racialized people particularly vulnerable. They 
point, first, to poverty. Study after study shows that offences by those at the bottom 
of social and economic hierarchies are more likely to be policed, prosecuted and 
punished severely than offences committed by wealthier people.'^ The implication is 



100 SETTING THE SCENE 

clear: a society that allows racialization to influence people's economic opportunities 
is likely to produce racial inequality in its prison populations. 

Even if criminal activity is widespread, patterns of offending behaviour differ 
according to the opportunities available. Those with access to other people's money 
through their employment or profession, for example, are much more likely to 
embezzle funds than to sell drugs on a street corner. They are also less likely to be 
caught. Crimes committed in the privacy of corporate offices tend to be more difficult 
to detect and prosecute than street crimes because of their low visibility, and because 
the law generally shelters these private spaces from state officials. 

Enforcement practices clearly vary with the seriousness of offences committed, and 
also with factors such as whether and how offences are reported, ease of identification 
and apprehension, and likelihood of conviction. Racialization in the wider society may 
also influence law enforcement practices. The criminal justice system requires police 
officers, lawyers, justices of the peace and judges to make judgments about 
individuals and their behaviour. Though the law provides a general framework for 
these judgments, it seldom specifies fixed rules that dictate outcomes. Instead, the law 
sets out broad standards that allow considerable scope for interpretation of the 
standards, the individual and the (alleged) offence. 

For example, when deciding if someone should be imprisoned before trial, judges or 
justices of the peace are expected to predict whether the accused, if released, will fail 
to appear for trial or is substantially likely to commit a criminal offence before the 
trial. Rarely does a judge or justice of the peace have much information about the 
accused relevant to such a prediction.' Consequently their decisions must draw more 
heavily on intuition and what lawyers responding to our survey describe as 
"empathy." This in turn increases subjectivity in decision-making. It creates 
conditions under which lack of familiarity with racialized communities may lead a 
decision- maker to rely subconsciously on stereotypes. 

Because the processes leading to discretionary choices in the criminal justice system 
are subtle and complex, studies of racial discrimination in this system use an approach 
that is now well established in human rights law. They begin with evidence of adverse 
impact - such as our findings of racial disproportion in prison admissions - and 
investigate how far legitimate non-discriminatory factors explain the adverse impact. 
Racial inequalities that remain after these factors have been taken into account are 
then treated as evidence of racial discrimination that is tolerated by the criminal justice 
system. 

Using this approach, studies in many jurisdictions have documented direct and indirect 
discrimination that results in over-representation of black or other racialized people in 
prisons." Later in this Report we document the Commission's findings that racial 



A significant body of evidence suggests that the factors they consider are not good predictors of failure to appear or 
offending before trial. See Chapter S. 



Racism in Justice: Prison Admissions 101 



discrimination in policing, bail hearings and sentencing decisions affects Ontario 
prison admissions. The remainder of this chapter presents a brief overview of the 
various stages where the exercise of discretionary authority may be susceptible to the 
introduction of racialization. 

Decisions that produce imprisonment: an overview 

The criminal justice process involves a great deal of interaction among different 
people with different roles. Decisions made at one stage affect those made later. It is 
essential to view the system as a whole. Imprisonment is always ordered by a 
particular judge or justice of tiie peace, but that decision results from the cumulative 
choices made by police officers, crown attorneys, defence counsel and probation 
officers. 

Entry into the criminal justice process 

In general, accused persons are drawn into the criminal justice system in two ways. 
Reports of crime may come from victims or observers. In addition, accused persons 
may be identified by proactive policing. 

Victims are an important source of information about violent offences and property 
crimes. Their decision about whether to report a crime is crucial. Surveys in Canada 
and elsewhere show that large proportions of individuals harmed by criminal offences 
do not report them to the police.^'* 

These surveys raise the question of whether racialization influences people in 
selectively reporting offences. As yet, no Canadian data deal with this question, and 
evidence from other jurisdictions is mixed. Some studies indicate racial inequalities 
result from victim reporting;" others do not show such patterns. ^^ 

Offences may also be identified through planned and systematic police work. Police 
may seek evidence of specific offences or focus their attention on specific geographic 
areas or particular communities. Police may also initiate encounters, such as stopping 
vehicles and people on the street during routine patrols. Whether or not it is planned, 
such proactive policing is highly discretionary. 

Much evidence from other jurisdictions indicates that this type of policing 
disproportionately pulls black people into the criminal justice system." Officers 
working on "gut feelings" or popular stereotypes may stop black people more than 
others, and may question them more aggressivelj Hostile encounters may not only 
uncover offences but also produce them. 

Police discretion to charge 

Once the police have information identifying a person with an alleged criminal 
offence, they must decide whedier to charge the suspect. Police officers are not 
legally or professionally obligated to lay charges, even if they believe they have 



102 SETTING THE SCENE 

enough grounds (evidence) to meet the test. They may instead do notliing, simply 
caution suspects, or advise victims how to lay charges themselves. 

The scope of police officers' discretion in laying charges is extremely broad. For 
example, an 18-year-old who shoves another and runs off witli the other's baseball 
cap could be charged with robbery (punishable by up to life imprisonment), theft (two 
years), assault (five years) or possession of stolen property (two years). As an 
alternative to laying charges, the police could instead talk with the teenager, perhaps 
in the presence of family members. This range of choices provides considerable scope 
for police officers' personal attitudes, perceptions and stereotypes to influence their 
decision. Even when an officer is acting with conscious fairness and objectivity, subtle 
influences may arise such as, in this example, whether the teenager comes from what 
the officer perceives to be a "good" or "stable" family. This assessment might lead to 
the conclusion that a black youth should be subjected to the criminal justice process, 
whereas a white youth could be dealt with adequately in the home. 

Studies of the extent to which racialization influences police discretion over charging 
tend to concentrate on outcomes because police interpretations of alleged criminal 
incidents and tlieir classification are not open to scrutiny. Formal records of officers' 
conclusions on whether and what to charge are available and may be studied, but the 
process by which officers arrive at these conclusions is not always obvious. Evidence 
from some jurisdictions, such as Britain, clearly shows that police discretion not to 
charge has racialized outcomes, at least with regard to youths. Canadian studies 
document class and other biases in police practices, particularly in their processing of 
Aboriginal people.^* 

Imprisonment before trial 

Once a charge is laid, the next critical set of decisions concern whether to hold 
accused persons in prison or to seek other controls on them during the period before 
trial. Criminal Code provisions suggest that once the accused have been processed by 
police and told of their duty to appear in court to answer the charges against them, the 
vast majority of accused persons should be set free. 

However, a judge or justice of the peace may order imprisonment before trial if it is 
necessary to ensure that the accused person will attend court for trial. The accused 
may also be detained if it is necessary to protect the public. The decision to detain or 
free the accused takes into account the seriousness of the charges and the accused's 
criminal record as well as criteria such as "ties to the community,"^' employment 
status and mental health. 

Racialization may influence police decisions about whether to release accused persons, 
and may affect the bail process through information the police supply to crown 
attorneys. Racialization may also be introduced through the criteria used to predict 
whether the accused will fail to appear at trial or is "substantially likely" to commit a 
criminal offence before trial. There is little Canadian research on imprisonment before 
trial. Some studies conducted in other jurisdictions have found evidence that 



Racism in Justice: Prison Admissions 103 



racialization influences pre-trial release decisions;^" others are inconclusive.'" Chapter 
5 reports our findings that racial inequalities do appear in the outcomes of bail 
decisions. 

Processing charges 

Once charges have been laid, crown attorneys assume responsibility for how they are 
processed. Crown attorneys have a professional duty to scrutinize charges and decide 
whether some or all should be withdrawn because of lack of evidence or because 
prosecution would not be in the public interest. They may also engage in resolution 
discussions with defence counsel to see if charges can be disposed of without a 
contested trial. This may also be an important step for the exercise of crown 
discretion. 

Since crown attorneys make these decisions mostly on the basis of written material 
rather than interaction with accused persons, there seems to be little scope for 
racialization to influence their choices. Nonetheless, research in other jurisdictions 
suggests that the possibility cannot be dismissed.''^ Much of the information available 
to crown attorneys is supplied by police officers who have met tlie accused and may 
have formed racialized judgments. For example, clues to accused persons' racial 
origin may be recorded on paper. Their names, countries of birth and physical 
descriptions are all normally included in the information available to crown attorneys. 
Moreover, some residential areas are identified with racialized communities, so that 
even an address may be taken to mdicate the race of an accused. The exercise of 
crown discretion is discussed later in tliis Report (see chapters 5, 6 and 7). 

Court resolutions 

Even if charges have been resolved through plea discussions, the accused person still 
appears in court. This appearance is a public announcement of the conviction and 
sentence. If the crown attorney and defence counsel have agreed on sentence before 
the court appearance, they present their agreement to the judge. Judges always have 
discretion to decide on an appropriate sentence, but they generally accept joint 
proposals. Consequently, in cases with a guilty plea, potential for racial inequality in 
sentencing may arise from the resolution discussions that led to the plea and from 
judges' responses to sentencing proposals. 

An accused who contests the charge(s) appears in court for a trial at which verdicts 
and any punishment are determined. These are adversarial processes in which crown 
attorneys and defence lawyers compete to influence decision-makers (judges and 
juries). If there is any possibility that decision-makers may be swayed by racialization, 
one side or the other may use it (see Chapter 7). 

This risk has been raised concerning jury trials of white police officers charged with 
shooting black persons.''^ It has also been addressed concerning jury tt-ials of black 
and other racialized accused. In R. v. Parks, the Ontario Court of Appeal specifically 
acknowledged that anti-black racism may influence potential jurors in criminal trials."*^ 



1 04 SETTING THE SCENE 

Sentencing is highly discretionary. The Criminal Code sets out maximum sentences 
for each offence, but offers judges Httle further guidance about the appropriate penalty 
for a typical offender who commits a routine offence. Although appellate decisions 
provide a framework for sentencing, the trial judge retains a broad discretion to 
determine sentence. 

Concerns about inconsistency in sentencing decisions in Canada and other jurisdictions 
are long-standing. Research has identified "extraordinary discrepancies in almost all 
aspects of sentencing""^ and noted diat "disparity between courts in sentencing 
practices ... is an established fact. '"'^ In tiiis connection the prison admissions data 
presented earlier in diis chapter raises the question of how far the disparity reflects 
racialization in the criminal justice system. 

There are clearly strong and widespread perceptions that judges discriminate against 
accused people from racialized groups.' Evidence concerning sentencing practices in 
Canada and other jurisdictions is mixed. Many studies show racial inequalities in 
sentencing practices;''^ others do not or are inconclusive."*^ In Chapter 8 we report the 
Commission's findings that racial inequalities do appear in sentencing decisions. 

Conclusion 

There can be few more significant interventions by the public into the private 
than imprisoning someone ... the decision to imprison a person, to take away 
their capacity to act in private society and to subject them constantly and totally 
to the supervision of the state, stands therefore in need of particularly clear 
justification by law.'" 

Imprisonment is society's most vivid and extreme form of exclusion. The dramatic 
findings presented in this chapter show that black women, men and youth in Ontario 
disproportionately experience imprisonment, and that this massive inequality in 
Ontario prison admissions is a relatively recent occurrence. Ontario simply must not 
continue to admit black people to prisons at the current rates. ^ 

These findings simply cannot be rationalized by suggesting that black people are 
inherently more criminal than others. Nor can they be rationalized as reflecting a 
criminal justice system consisting of officials who are driven by racial hatred. 
However, racialization in Canadian society is a recognized fact both inside and outside 



See Chapter 2 for perceptions of judges' general treatment of people. 

Late in our mandate we became aware of a recent report, for the federal and provincial Ministries of the Solicitor 
General, analyzing remand populations in six southern Ontario detention centres. In total, 304 randomly selected 
adult male remand prisoners were interviewed in early 1994. The study showed revealed that 49% of adult male 
remand prisoners in the sample self-identified as "Caucasian," 31% as black and 20% as "other racial 
minority/unknown." [Barklay Resources, "Awaiting Trial; Accused persons remanded to Custody," August 1995 
(unpublished).] In other words, this study indicates that the patterns of gross over-representation are continuing. 



Racism in Justice: Prison Admissions 105 

the criminal justice system. Wherever broad discretion exists, racialization can 
influence decisions and produce racial inequality. 

The criminal justice system operates through a series of highly discretionary decision- 
making stages. Discretion is exercised in subtle, complex and interactive ways which 
leave considerable scope for racialization to influence practices and decisions, and for 
bias to be transmitted from one stage of the process to others. 

In the remainder of this Report we document evidence of the influence of racialization 
on criminal justice practices, and evidence diat this influence is tolerated - evidence of 
systemic racism. We also make recommendations for securing racial equality in the 
criminal justice system. 



106 SETTING THE SCENE 



Endnotes 

Canada, House of Commons, Report to Parliament by the Sub-Committee on the Penitentiary 
System in Canada, chair, Mark MacGuigan ("MacGuigan Report") (Ottawa: 1977), p. 35. 

^ Vancise J.A., in R. v. McGinn (1989) 49 C.C.C. (3d) 137 (Sask C.A.) at 152 (dissenting). 

Province of Quebec, Commission of Enquiry into the Administration of Justice on Criminal 
and Penal Matters, Crime, Justice and Society (Quebec: Quebec Official Publisher, 1969), p. 
48. 

'' MacGuigan Report (note 1), p. 16. 

^ Law Reform Commission of Canada,. The Criminal Law in Canadian Society (Ottawa: 
Supply and Services, 1982), p. 44. 

* Canada, Commission of Inquiry into the Non-Medical Use of Drugs, Final Report (majority), 
chair Gerald LeDain ("LeDain Report") (Ottawa: Information Canada, 1973), pp. 58-9. 

Solicitor General of Canada, A Summary and Analysis of Some Major Inquiries on 
Corrections - 1938 to 1977 (Ottawa: Supply and Services, 1977). 

* Heino Lilies and Barry Stuart, "The Role of the Community in Sentencing," Justice Report 8 
(1992), p. 2. 

' R V. Pettigrew (1990) 56 C.C.C. (3d) 390 (B.C.C.A.) at 401. 



10. 



12. 



13. 



Statistics Canada, Profile of Ethnic Groups (Ottawa: Ministry of Supply and Services 
Canada, 1989), catalogue no. 93-154. 

Statistics Canada, Ethnic Origins: The Nation (Ottawa: Ministry of Industry, Science, and 
Technology, 1993), catalogue no. 93-315. 

Data provided by Andy Birkenmayer, Canadian Centre for Justice Statistics (manuscript on 
file). 

Royal Canadian Mounted Police, National Drug Intelligence Estimate 1987/88 (Ottawa, 
1988); D. Owen Carrigan, Crime and Punishment in Canada: A History (Toronto: 
McLelland & Stewart, 1991), cited by McLachlin J. (dissenting) in R. v. Pearson (1992) 77 
C.C.C. (3d) 124. 

See generally: Canadian Bar Association, National Criminal Justice Section, "Submission on 
Bill C-7," May, 1994; Addiction Research Foundation, "Bill C-7 and Canadian Policy," 
submission to the Parliamentary Sub-Committee on Bill C-7, May 9, 1994 (Toronto); City of 
Toronto, Department of Public Health, "Submission to Sub-Committee on Bill C-7 of the 
Standing Committee on Health," May 24, 1994; American Bar Association, Report of an Ad 
Hoc Committee of the Criminal Justice Section of the American Bar Association (January 
1992); Alfred Blumstein, "Making Rationality Relevant: The American Society of 
Criminology 1992 Presidential Address," Criminology vol. 31, no. 1 (1993), p. 1; Committee 
on Drugs and The Law, "A Wiser Course: Ending Drug Prohibition," The Record 49 (1994), 



16. 



17. 



18 



19. 



Racism in Justice: Prison Admissions 107 

p. 521; William J. Chambliss, "Policing the Ghetto Underclass: The Politics of Law and Law 
Enforcement," Social Problems 41 (1994), p. 177. 

See generally: S. Wisotsky, "Exposing the War on Cocaine: The Futility and Destructiveness 
of Prohibition." Wisconsin Law Review (1983), p. 1305; Wisotsky, Breaking the Impasse in 
the War on Drugs (Wesport, Conn.: Greenwood Press, 1986); LeDain Report (note 6); Royal 
Canadian Mounted Police, National Intelligence Drug Estimate. 1984-85 (Ottawa: Supply 
and Services, 1985); Patricia G. Erickson, E.M. Adiaf G.F. Murray and R.G. Smart, The 
Steel Drug: Cocaine in Perspective, second edition (New York: Lexington Books, 1994). 

Alfred Blumstein, "Making Rationality Relevant" (note 14); Michael Tonry, "Racial 
Disproportion in US Prisons," B.J. Crim. 34 (1994), p. 97. 

World Health Organization (WHO) and United Nations Interregional Crime and Justice 
Research Institute (UNICJRI), Cocaine Project Report (March 1995). 

Tonry, "Racial Disproportion" (note 16). 



Stephen Jay Gould, "Human Equality," in 77?^ Flamingo's Smile: Reflections on Natural 
History (New York: Norton Books, 1985), p. 196. 

\^°yjohn Pitts, "Thereotyping: Anti-Racism, Criminology and Black Young People," in Dee 
Cook and Barbara Hudson, eds.. Racism and Criminology (London: Sage Publications 
1993), p. 113. 



21. 



22. 



23. 



24., 



J.R. Lambert, Crime, Police and Race Relations: A Study in Birmingham (London: Oxford 
University Press, 1970); C. Shaw and H. Mackay, Juvenile Delinquency and Urban Areas 
(Chicago: Chicago University Press, 1942); David Thomas, "Criminality Among the Foreign 
Bom: An Analysis of the Federal Prison Population" (Ottawa: Immigration Policy Branch, 
Employment and Immigration Canada, April, 1992). 

Pitts, "Thereotyping" (note 20), p. 113. 

Ibid., p. 111. 

See generally: Mike Brogden, Tony Jefferson and Sandra Walklate, Introducing Policework 
(London: Unwin, 1988); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison: 
Ideology, Class and Criminal Justice, third edition (New York: Macmillan, 1990); Dee Cook 
and Pat Carlen, "Fiddling Tax and Benefits: Inculpating the Poor, Exculpating the Rich," in 
Pat Carlen and Dee Cook, eds., Paying for Crime (Milton Keynes, U.K.: Open University 
Press, 1989); John Braithwaite, Inequality, Crime and Public Policy (London: Routledge and 
Kegan Paul, 1979); Inez Dootjes, Patricia Erickson and Richard Fox, "Defence Counsel in 
Juvenile Court: A Variety of Roles," Canadian Journal of Criminology and Corrections 14 
(1972), p. 132; Bernard Schissel, Social Dimensions of Canadian Youth Justice (Toronto: 
Oxford, 1993); Pitts, "Thereotyping" (note 20); James B. Jacobs, "Macrosociology and 
Imprisonment," in David F. Greenberg, ed.. Corrections and Punishment (Beverly Hills, 
Calif: Sage, 1977); Alfred Blumstein, J. Cohen, J. Roth and C. Visher, eds.. Criminal 
Careers and Career Criminals (Washington, D.C.: National Academy Press, 1986); Austin 
T. Turk Criminality and the Legal Order (Chicago: Rand McNally, 1969). 



108 SETTING THE SCENE 



25. 



26, 



28. 



29, 



30.) 



Brogden, Jefferson and Walklate, Introducing Policework (note 24); Pitts, "Thereotyping" 
(note 20); Edward Boldt, L. Hursh, S. Johnson, and M. Taylor, "Presentence Reports and the 
Incarceration of Natives," Canadian Journal of Criminology 25 (1983), p. 269; Robert 
Reiner, "Race and Criminal Justice," New Community 16 (1989), p. 5; W.J. Sabol, "Racially 
Disproportionate Prison Populations in the United States: An Overview of Historical Patterns 
and Review of Contemporary Issues," Contemporary Crises 13 (1989), p. 405. 

Pitts, "Thereotyping" (note 20). 

TTiomas Gabor, Everybody Does It: Crime by the Public (Toronto, University of Toronto 
Press, 1994); E.M. Adlaf, R.G. Smart, G. Walsh and F. Ivis, "Is the Association Between 
Drug Use and Delinquency Weai<ening?" Addiction 89 (1994), p. 1675; D. Nagin, David P. 
Farrington and T. Moffit, "Life Course Trajectories of Different Types of Offenders," 
Criminology 33 (1995), p. Ill; Patricia Erickson, "Youthful Involvement in Illicit Street 
Drug Markets: Avenues for Prosperity or Roads to Crime?" in B. Galaway and J. Hudson, 
eds.. Youth in Transition to Adulthood: Research and Policy Implications (Toronto: 
Thompson Educational Publishing, forthcoming). 

Reiman, Rich Gel Richer (note 24). 

See studies cited in Gabor, Everybody Does It (note 27). 

Marc LeBlanc and Marcel Frechette, Male Criminal Activity from Childhood Through Youth: 
Multilevel and Developmental Perspectives (New York: Springer- Verlag 1989); Marc 
LeBlanc, "Delinquency as an Epiphenomenon of Adolescence," in R. Corrado, Marc 
LeBlanc and J. Trepanier, eds., Current Issues in Juvenile Justice (Toronto: Butterworths, 
1983); David P. Farrington, Juvenile Justice in England and Canada. (Ottawa: Solicitor 
General, 1979). 

Diana R. Gordon, The Justice Juggernaut: Fighting Street Crime, Controlling Citizens (New 
Brunswick, N.J.: Rutgers University Press, 1991); Nils Christie, Crime Control as Industry 
(London: Routledge, 1993); Thomas Mathieson, Prison on Trial: A Critical Assessment 
(London: Sage, 1990); John Braithwaite, Crime, Shame, and Reintegration, (Cambridge: 
Cambridge University Press, 1989), Kathryn Barnard, Carol Tennenhouse and Mark 
Krasnick, "The September Study - A Look at Sentencing and Recidivism: A Study Paper 
Prepared for the Law Reform Commission of Canada" (Ottawa: Supply and Services, 1976); 
Law Refonn Commission of Canada, Our Criminal Law (Ottawa: Supply and Services, 
1 977); Canada, House of Commons, Crime Prevention in Canada: Toward a National 
Strategy, 12th report of the Standing Committee on Justice, chair. Bob Homer M.P. (Ottawa: 
Queen's Printer, 1993). 

Brogden, Jefferson and Walklate, Introducing Policework (note 24); Cook and Carlen, 
"Fiddling '^.x and Benefits" (note 24); Blumstein et al.. Criminal Careers (note 24); Gordon, 
Justice Juggernaut (note 31). 



^€i, 



ee generally: Schissel, Social Dimensions (note 24); Roger G. Hood with Graca Cordovil, 
Race and Sentencing: A Study in the Crown Court - A Report for the Commission for Racial 
Equality (Oxford: Clarendon Press, 1992); Darnell F. Hawkins, "Trends in Black- White 
Imprisonment: Changing Conceptions of Race or Changing Conceptions of Social Control," 
Crime and Social Justice 24 (1985), p. 187; Barbara A. Hudson, "Discrimination and 
Disparity: The Influence of Race on Sentencing," New Community 16 (1989), p. 23; Marian 



34. 



35. 



36. 



37 



38 



39 



40 



Racism in Justice: Prison Admissions 109 

FitzGerald, "F.thnic Minorities and the Criminal Justice System," research study no. 20 for 
United Kingdom, Royal Commission on Criminal Justice (London: HMSO 1993) pn 
41^4. 

Anthony Doob and Rosemary Gaertner "Trends in Criminal Victimization: 1988-1993," 
Juristat (Ottawa: Statistics Canada, 1994), catalogue no. 85-002, vol. 14 no. 13; P. Mayhew 
and N.A. Maung. Sur\-e\'ing Crime: Findings from the 1992 Briiish Crime Survey, Home 
Office Research and Statistics Department, research findings no. 2 (London: HMSO, 1992); 
J.J.M. Van Dijk and P. Mayhew, Criminal Victimization in the Internationalized World: Key 
Findings of the 19H9 and 1992 Intentional Crime Sun'eys (The Hague, Netherlands: Ministry 
of Justice, Directorate for Crime Prevention, 1992). 

Rabindra Shah and Ken Pease, "Crime, Race and Reporting to the Police," Howard Journal 
of Criminal Justice 31 (1992), p. 192; Philip Stevens and Carole Willis, Race. Crime and 
Arrests, Home Office Research Study no. 58 (London: HMSO, 1979). 

Shah and Pease, ibid. 

David J. Smith, "Race, Crime and Criminal Justice," in Mike Maguire, Rod Morgan and 
Robert Reiner, eds.. The Oxford Handbook of Criminology (Oxford: Oxford University Press 
1994), pp. 1064-7. 

See generally: Clifford D. Shearing, ed.. Organizational Police Deviance: Its Structure and 
Control (Toronto: Butterworths, 1981) ; Richard V. Ericson, Reproducing Order: A Study of 
Police Patrol Work (Toronto: University of Toronto Press, 1982); Schissel, Social 
Dimensions (:<ote 24); John H. Hylton "Some Attitudes Towards Natives in a Prairie City," 
Canadian Journal of Criminology 23 (1981), p. 357; R.M. Bienvenue and A.H. Latif, 
"Arrests, Dispositions and Recidivism: A Comparison of Indians and Whites," Canadian 
Journal of Criminology and Corrections 16 (1974), p. 105. 

See, for example. Re Powers and The Queen (1973) 9 C.C.C.(2d) 533 at 541 for a list of 
factors generally considered "ties to the community." 



MacLeod (1990) unpublished study cited in Fitzgerald, "Ethnic Minorities" (note 33); Andy 
Shallice and Paul Gordon, Black People. White Justice^ Race and the Criminal Justice 
System (London: Runnymede Trust, 1990); Hood, Race and Sentencing (note 33). 

l. Brown and R. Hullin, "Contested Bail Applications -The Treatment of Ethnic Minority 
and White Offenders," Criminal Law Review (1993), p. 107; Monica A. Walker, "The Court 
Disposal and Remands of White, Afro-Caribbean and Asian Men (London 1983)" British 
Journal of Criminology 29 (1989), p. 353. 

See generally: Mark Curriden, "Selective Prosecution," American Bar Association Journal 78 
(1992), p. 54; Elizabeth L. Earle, "Banishing the Thirteenth Juror: An Approach to the 
Identification of Prosecutorial Racism," Columbia Law Review 92 (1992), p. 1212; Dwight 
L. Greene, "Abusive Prosecutors: Gender, Race and Class Discretion and the Prosecution of 
Drug-Addicted Mothers," Buffalo Law Review 39 (1991), p. 737; Tracey L. McCain, "The 
Interplay of Editorial and Prosecutorial Discretion in the Perpetuation of Racism in the 
Criminal Justice System," Columbia Journal of Law and Social Problems 25 (1992), p. 601; 
Michael McConville, Andrew Sanders and Roger Leng, The Case for the Prosecution: Police 
Suspects and the Construction of Criminality (London, U.K.: Routledge, 1991). 



110 SETTING THE SCENE 



43. 



44. 



45. 



( 47. I 



48. 



49. 



R. V. Lines, April 26, 1993, unreported, Ont. Ct. (Gen. Div.), per Hawkins J. 

R. V. Parks (1993) 84 C.C.C. (3rd) 353 at 369. 

J.V. Decore, "Criminal Sentencing; The Role of the Canadian Courts of Appeal and the 
Concept of Uniformity," Criminal La^' Quarterly 6 (1964), pp. 324-380. 

John L.J. Edwards, "The Advent of English (Not French) Criminal Law and Procedure into 
Canada - A Close Call in 1774," Criminal Law Quarterly 26 (1984), pp. 464-482. 

See, for example. Hood, Race and Sentencing (note 33); Schissel, Social Dimensions (note 
24); Marjorie Zatz, "Race, Ethnicity and Determinate Sentencing: A New Dimension to an 
Old Controversy," Criminology 22 (1984), p. 147; Zatz, "Pleas, Priors and Prison: 
Racial/Ethnic Differences in Sentencing," Social Science Research 14 (1985), p. 169; Zatz, 
"The Changing Forms of Racism / Ethnic Biases in Sentencing," Journal of Research in 
Crime and Delinquency 24 (1987), p. 69. 

Boldt et al., "Presentence Reports" (note 25); I. Brown and R. Hullin, "A Study of 
Sentencing in the Leeds Magistrates Courts: The Treatment of Ethnic Minority and White 
Offenders," British Journal of Criminology (1992), p. 41; Wilbanks, Myth of a Racist System 
(note 33). For studies that suggest discrimination is virtually irrelevant to over-representation 
of black persons in U.S. prisons, see Alfred Blumstein, "On the Racial Disprcportionality of 
United States' Prison Populations," Journal of Criminal Law and Criminology 73 (1982), p. 
1259; William Wilbanks, The Myth of a Racist Criminal Justice System (Monterey, Calif.: 
Brooks/Cole, 1987). 

Stephen Livingstone and Tim Owen, Prison Law: Text & Materials (Oxford, Oxford 
University Press, 1993), p. 288. 



PART II 



Examining Practices 



Chapter 5 Imprisonment before Trial 

Chapter 6 Charge Management 

Chapter 7 Court Dynamics 

Chapter 8 Imprisonment after Conviction 

Chapter 9 Racism Behind Bars Revisited 







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Chapter 5 

Imprisonment Before Trial 

Fairness requires that [pre-trial] detention should be used as a last 
resort .... Unjustified detention shows disregard for human rights.' 

This chapter focuses on the decisions that result in imprisonment of accused people 
before their trials. At this stage of the process, the criminal justice system is 
imprisoning persons whom it considers innocent, and who may yet be acquitted or 
have the charges against them withdrawn. Yet, historically and currently the 
criminal justice system tends to treat this decision-making with much less precision 
or concern than the criminal trial. 

Excessive detention of untried accused was documented in Martin Friedland's 1965 
study of Toronto courts," and subsequent Criminal Code amendments were intended 
to reduce imprisonment of untried persons. Nevertheless, every year in Ontario tens 
of thousands of untried accused spend time behind bars. In 1992/93, for example, 
41,195 (49%) of a total of 83,405 admissions to Ontario prisons were unsentenced 
prisoners, of whom the vast majority had not been tried.* By 1993/94, these remand 
admissions (46,151) amounted to 54% of total admissions (86,022)' to provincial 
prisons.^ 

Our preliminary consultations revealed serious and persistent concerns that systemic 
racism makes black and many other racialized accused in Ontario especially 
vulnerable to imprisonment before trial. Some lawyers recounted incidents of harsh 
treatment of black and other racialized clients in the bail process. Many others 
described subtle biases in the exercise of discretion. They and other community 
members also expressed concerns about inadequacies in justice services - 
particularly interpreter services - that contribute to the unnecessary imprisonment of 
racialized accused. 



t 



Accused people may be remanded into custody at any sUge before they are sentenced. Tlius data on remand 
admissions includes for example, people who have been convicted but are ordered into custody pending a sentencing 
hearing. Most remand admissions, however, are of untried persons. 

The federal-provincial Barklay Report notes that in November 1994 the number of adult remand prisoners in six 
Ontario institutions was 9.2 percent higher than the same month in the previous year, a pattern that "continues a 
trend that began several years ago." ("Awaiting Trial" [note 24], p.4.) 

113 



114 EXAMINING PRACTICES 

The prison admissions data documented in the previous chapter are consistent with 
these allegations about the use of imprisonment before trial. In 1992/93, for 
example, the remand admission rates for people classified as black. South Asian, 
Asian or Arab were at least twice as high as their sentenced admission rates.* (In 
other words, for every member of these groups sentenced to prison, at least two 
members of the group were jailed on remand.) By contrast, for people classified as 
white or Aboriginal, the remand and sentenced admission rates were virtually 
identical (for every white or Aboriginal person sentenced to prison, one member of 
the group was jailed on remand). This peculiar finding - that people who are not 
white or Aboriginal were much more likely to be admitted to prison while presumed 
innocent than they are after guilt was established - warranted further investigation. 

The research used a variety of methods, including statistical analysis, file and 
transcript reviews, interviews and opinion surveys, analysis of case law and 
legislation, and court observation. For the most part we summarize our findings and 
conclusions in the course of discussing specific issues. But the findings of our major 
statistical study are documented in considerable detail because it is the most 
comprehensive Canadian research conducted to date on racial differences in pre-trial 
imprisonment decisions. 

We begin with an overview of: the rationale for imprisonment before trial and the 
problems it poses; the principles of restraint, fairness, equality and accountability 
that should generally govern pre-trial imprisonment; and legal justifications for 
ordering it. We then document our findings about the exercise of discretion. Here 
we focus on our major study, which compares the results of police and court release 
decisions for black and white adult males charged with the same offences. This 
study shows that across the entire sample and for some specific offences - 

• black accused are more likely than white accused to be imprisoned before trial. 

• little of the difference in the use of imprisonment for black and white accused is 
explained by factors said to be relevant to imprisonment decisions. 

• imprisonment decisions are significantly influenced by the race of the accused. 

• reliance on employment status in court release decisions contributes significantly 
to differential imprisonment of black accused. 

After presenting these findings, we return to the legal and other operating norms of 
the pre-trial detention process with recommendations to ensure that the criminal 
justice system no longer tolerates racial inequality in deciding whether to imprison 
accused persons before trial. 



See Chapter 4, Figure 4-10. 



Imprisonment before Trial 1 15 

Regulating imprisonment before trial 

[T]he presumption of innocence is an animating principle throughout the criminal 
justice process .... The starting point for any proposed deprivation of life, liberty or 
security of the person ... charged with ... an offence must be that the person is 
innocent.'' 

Canadian law generally allows the state to imprison people as punishment for 
committing a crime, to force compliance with court orders and to control them until 
specific legal processes are completed. In a democratic society it is fundamentally 
wrong to imprison people before trials as punishment, or for oblique purposes such 
as to force them to plead guilty, or to assist officials in investigations. 

Control, by contrast, is viewed as a legitimate reason for imprisoning some accused 
people before trial. This use of imprisonment, sometimes known as "detention" or 
"custody," is to ensure the accused person attends trial or prevent offending before 
trial. But strict limitations on the use of imprisonment for this purpose are essential. 

Reasons for limiting pre-trial imprisonment 

Imprisonment before trial is a substantial interference with liberty, and deliberately 
inflicts suffering on people who are legally presumed innocent. Moreover, 
imprisonment is generally a harsher experience for untried accused than for 
convicted persons in Ontario institutions. All accused held before trial are kept 
under maximum-security conditions whether they are charged with possession of 
drugs, theft, obstructing justice or murder. Jails and detention centres housing 
remand prisoners are usually overcrowded, resulting in poor living conditions, a 
virtual absence of privacy and heightened anxiety. As Judge Stortini noted in 1992, 
these institutions can offer little useful or productive activity to untried prisoners:' 
"local jails are considered maximum [security] holding facilities. There are no or 
very little rehabilitative programs for people. Local jails ... warehouse people."^ 

Beyond their immediate suffering, untried prisoners are considerably disadvantaged 
throughout the criminal justice process. Imprisonment before trial intensifies 
pressures on them to plead guilty, hampers their preparations for trial, and may 
affect how they are perceived in court. Several studies in different jurisdictions have 
shown that imprisoned accused who plead not guilty are less likely to be acquitted 
at trial than those who are not detained before trial; and that whatever the plea, they 
are much more likely to receive a prison sentence if convicted.^ These studies 
recognize that the differential is often largely explained by the courts relying on 
similar factors during bail, trial and sentencing proceedings. But they also suggest 



Ironically, the lack of services is often justified on the basis that prison programs are an aspect of punishment and as 
such should not be used for those presumed innocent. The consequence of this policy for the untried prisoner is, at 
best, intense boredom; at worst, emotional and psychological damage. See for example, R. v. Bennell [1993] O.J. 
No. 892. 



1 1 6 EXAMINING PRACTICES 

that part of the difference at trial and sentencing is due to the earlier detention 
decision. 

The negative consequences of imprisoning untried accused may continue well after 
the trial. It is extremely expensive to "warehouse" people, and doing so may breed 
anger, bitterness and alienation from society. Pre-trial imprisonment may be 
especially harsh and embittering for the innocent accused person, because the 
experience "leaves a stigma even if [the accused] is eventually found innocent. This 
kind of social dislocation may strengthen his belief that there is no place for him in 
the normal community."' Imprisonment before trial also results in many untried 
prisoners adjusting to the authoritarian and often violent regimes in which they are 
held by developing precisely the types of anti-social attitudes and behaviours that 
the criminal justice system wants to deter. The Canadian Committee on Corrections 
in 1 969 warned of the dangers of imprisoning untried first offenders except where 
absolutely necessary: 

The period following his first arrest is a crucial one for the first offender. If he is 
unwisely dealt with, he may come to see society as an enemy and to assume that his 
future lies with the criminal element. If he is released while awaiting trial he may 
continue his positive family and social relationships; if he is held in jail he will 
more readily identify himself with the criminal element.* 

Principles for limiting pre-trial imprisonment 

Four key principles are the basis for limiting the use of imprisonment before trial. 
Each stems from the fundamental value that "society is not warranted in inflicting 
greater harm on a person ... than is absolutely necessary for the protection of 
society."' 

• Restraint "requires that detention be used as a last resort."'" This principle 
means, generally, that pre-trial imprisonment should be an exceptional event. No 
one should be imprisoned before trial unless the state demonstrates a specific, 
compelling reason for detention and shows that no less intrusive method of 
control is available. 

Fairness requires that every individual whom the state seeks to imprison before 
trial understands the specific and compelling reason for this action and is given a 
full opportunity to challenge the state's position. It also means that decisions 
must be made by unbiased officials and based on clear, known criteria. If the 
state fails to show a compelling reason for imprisonment, decision-makers must 
not make freedom conditional on financial or other conditions that the accused 
cannot meet. 

• Accountability requires that the use of imprisonment to control accused persons 
is open to public scrutiny and to challenge by persons subject to it. Also, there 
must be opportunities to correct mistakes that result in unjustified detention 
before trial, and remedies for individuals who are harmed by it. 



Imprisonment before Trial 1 1 7 

• Equality requires that all accused at risk of pre-trial imprisonment are treated 
with the same respect as individuals and with concern for their specific interests. 
Obviously, social constructions of racialized groups as "unequal," "undesirable" 
or "criminal" must not be allowed to influence imprisonment decisions. Equal 
respect also requires the justice system to ensure that all accused have access to 
the services needed to defend themselves against the threat of imprisonment 
before trial. 

Legal justifications for imprisonment before trial 

Detention before trial begins when the police exercise the power of arrest, one of 
several methods of initiating criminal proceedings. Arrest is the only method that 
allows the police to hold individuals and, if they decide to lay charges, to 
recommend imprisonment. By contrast, criminal proceedings launched by summons 
do not involve any detention, and those commenced by an appearance notice may 
involve only a brief "investigative detention" when the police make contact with the 
accused. 

After arrest, detention of an accused must be justified at two or more distinct stages 
of the criminal justice process. The first stage is controlled entirely by the police 
(police detention). It should end as soon as possible, normally within 24 hours after 
arrest.' By the end of this period, an arrested person must be either released or taken 
before a justice for a hearing on judicial interim release or "bail."^ At this second 
stage, justices of the peace or judges (bail justices) decide whether imprisonment is 
necessary, based on information and reasons presented to them by lawyers for the 
state (crown attorneys)* and the accused (defence or duty counsel). 

In some instances, a police decision to hold an accused person after arrest is 
automatic. Police have no authority to release a person charged with an indictable 
offence for which the maximum penalty is more than five years imprisonment, but 
must take the accused to a bail hearing. All other legal detentions or imprisonment 
of accused people involve discretionary judgments that detention is necessary to 
achieve specific purposes. These judgments are based on predictions about how an 
accused person would behave if set free before trial. 

When making representations or deciding on release, the police, crown attorneys and 
justices are expected to use available information to predict what the accused would 



Section 503(1 )(b) of the Criminal Code permits the police to detain an accused for longer than 24 hours if a justice 
is not available within that period. In that case, the accused must be taken before a justice as soon as possible. 

Though "bail" technically is a sum of money posted as a surety to guarantee attendance at trial, it is commonly used 
to refer to the hearings at which release or detention decisions are made (bail hearings). And it is sometimes used to 
mean the system for making these decisions (the bail system). 

At most bail hearings in Ontario, the state is represented by lawyers (known as crown attorneys) employed or 
retained part-time by the provincial government. Bail hearings - and prosecutions - for some offences, such as drug 
charges, are conducted by federally employed or retained lawyers, generally known as crown prosecutors or agents 



1 1 8 EXAMINING PRACTICES 

do if freed until trial. Unsurprisingly, the basic justifications for imprisonment and 
hence the predictions to be made at the two stages of the process are similar. But 
there are important differences in how the law structures decision-making. 

The Criminal Code sets out three purposes for discretionary police detention, but 
gives no direction about the order in which the police should consider them, their 
relative importance or what information is relevant. It simply states that the police 
may detain an accused if the officer in charge has reasonable grounds to believe 
detention is necessary to ensure that the accused attends court or to promote the 
public interest in preventing crime or investigating the alleged offence. 

Justices at bail hearings use similar criteria: ensuring attendance at court and 
protection of the public. But the Criminal Code explicitly requires them to focus 
separately on each justification for imprisonment and directs them to consider the 
reasons in sequence. Thus a justice deciding whether to imprison an untried accused 
must first hear evidence about the risk that the accused will fail to appear at trial 
and rule on this "primary ground." Only after the justice decides that the risk of 
flight is not significant enough to justify imprisonment does the "secondary ground" 
become relevant. At this point the focus shifts to any evidence that the accused is 
substantially likely to offend or interfere with justice before trial.* 

The Criminal Code gives general guidance to justices, but not to the police, about 
the information they may consider when deciding whether to imprison untried 
accused. Section 5 1 8 emphasizes three categories of prior contact with the criminal 
justice system: criminal record, previous breach of a bail order, and outstanding 
charges. A fourth factor is the "strength of the evidence against the accused." 

In addition, judges have developed case law that identifies other factors as relevant 
to decisions on pre-trial imprisonment. Rulings have established that evidence of an 
accused's "ties to the community" is highly significant to assessing the risk of flight 
(the primary ground). Though community ties is a vague concept, it is generally 
taken to include "residence, fixed place of abode, employment or occupation, marital 
and family status ... proximity of close friends and relatives, character witnesses and 
personal history."" 

With respect to the secondary ground - to prevent crimes or interference with the 
administration of justice -judges have mostly emphasized the accused's previous 
criminal history, if any, and the nature of the offence. Thus the time since the last 
offence (currency of record) may be a significant factor, as may previous violent 
offences or violence used in the incident that resulted in the charge. 



Until 1992, justices could also base their decisions on a third criterion - public interest. In that year the Supreme 
Court of Canada said "public interest" was too vague and that reliance on it to imprison accused persons would 
contravene the fundamental right not to be denied reasonable bail. (R v. Morales (1992) 77 C.C.C. (3d) 91). 



Imprisonment before Trial 1 19 

Racial inequality in the use of pre-trial 
imprisonment: findings 
Lawyers' perceptions of racial bias 

Many defence and duty counsel perceive differential treatment in the bail system. 
For example, our survey of defence counsel shows that 67% of lawyers with 
substantial (40% or more) racial minority clienteles think that racial minority people 
charged with drug trafficking are more likely to be detained before trial than white 
people charged with the same offence. Large proportions of these lawyers also 
perceive differential treatment of racial minority and white people charged with 
armed robbery (50%), drug possession (41%), aggravated assault (39%) and sexual 
assault (37%). 

Lawyers commented that differential treatment at bail arises because - 

"White accused are able to show more often than racial minorities those things 
(wealth, employment, drug rehabilitation, family support, community support, etc.) 
which impel crowns, police and judges to extend bail leniency. Class biases overlap 
with racial biases." 

"Assumptions are made by police, crowns and judges that certain racial minorities 
are more likely to be guilty of certain categories of offences, and discretion at bail is 
exercised or restricted accordingly." 

"The worst, i.e., most widespread problem [of systemic racism] is at the bail stage 
because police recommendations weigh so heavily and reflect nothing more than 
whether they like the guy or not - other things (e.g., seriousness of offence) being 
equal." 

Consultations, submissions and survey comments* produced many examples of 
unjust discretionary imprisonment of accused from racialized communities, 
including: 

"I had one terrified 18 year-old-young black man up for a show cause [bail hearing]. 
He'd never been in trouble before, was illiterate and completely at a loss to 
understand the court process. I had him seen by the Bail Program. He was approved 
and therefore, ought to have been released right away - he was only charged with 
possession of a stolen bicycle. The Crown requested and received three additional 
days to verify his identity. The implicit motivation behind this three-day remand 
request was that they were incredulous that the black boy didn't have a record. I was 
disgusted .... My client had already been detained for two days (over the weekend). 
It should have been ample time for the police and Crown to 'investigate' his 
identity." 



Crown attorneys and judges who responded to surveys tended not to perceive racial bias at the bail stage. Those 
who did perceive bias simply recorded an opinion without giving examples. 



120 EXAMINING PRACTICES 

"I had a bail hearing with a Vietnamese youth client who was charged as a minor 
player on an extortion offence. The Crown was agreeable to release until finding out 
that the accused was Vietnamese. The Crown then immediately asked for a detention 
order because it was assumed to be a 'gang' incident." 

Other defence lawyers do not agree that racial minority and white persons are 
treated differently in the bail system. They, like the vast majority of crown attorneys 
we surveyed, think race has no impact on pre-trial detention. These lawyers made 
comments such as: "I have never seen race enter into discretion in the pre-trial 
process" and "in the vast majority of cases, at the pre-trial stage, the crown does not 
even know the race of the accused." 

Unsurprisingly, many crown attorneys surveyed by the Commission were adamant 
that they are not influenced by an accused's race. Often their comments emphasized 
the lack of opportunity for a crown attorney even to think about race. They pointed 
out that their decisions are usually based on file documents and that the pace of 
their work makes it impossible for anyone to discriminate deliberately. For example, 
one crown attorney stated that "my position on bail is usually made before I've seen 
the accused ... I don't know their racial background." Several commented that 
"sometimes it is so busy in court that we hardly notice the accused." 

As these examples show, strong perceptions of differential treatment articulated by 
many lawyers are matched by insistent denials from others. Thus the Commission 
considered it particularly important to conduct research into the outcomes of pre- 
trial release and detention decisions. 

Introduction to the major study 

To investigate the exercise of discretion in the remand process, the Commission 
conducted a statistical study of imprisonment decisions for samples of black and 
white persons charged with any of five offence types: drug charges, sexual assaults,' 
bail violations, serious non-sexual assaults^ and robbery. We commissioned the 
Canadian Centre for Justice Statistics to gather the data, and Professors Anthony 
Doob of the University of Toronto and Julian Roberts of the University of Ottawa to 
analyze them.* 

The sample, 821 adult males described by the police as black and 832 adult males 
described by the police as white, was drawn from Metro Toronto Police files (which 
included crown briefs) for 1989/90. About half of each group was aged 27 or 



t 



The Criminal Code has three levels of sexual assault offences: "sexual assault," "aggravated sexual assault causing 
bodily hanii" and "aggravated sexual assault" The sample was drawn from all 1989/90 sexual assault charges, but 
all of the charges in the sample we could identify specifically are of the first type (level I offences). 

This category consists of aggravated assault, assault bodily harm and assault peace officer charges. 



Details of this study can be found in our Technical Volume. See Appendix B. 



Imprisonment before Trial 121 

younger. Metro Toronto was selected to ensure that the samples - particularly the 
black sample - would be large enough for meaningful analysis. This type of study 
requires approximately equal numbers of black and white accused for each of the 
five offence types. It would not have been difficult to find sufficient white accused 
in the police files of any major urban centre. But Metro Toronto, because it has the 
highest concentration of black residents of any Ontario police jurisdiction, seemed 
more likely than most to yield an adequate sample of black accused persons for the 
period covered by the study.* As Table 5-1 shows, each offence category contains 
similar numbers and proportions of black and white accused persons. 

The study period, 1989/90, was selected for two reasons. First, the Commission 
intended to use the same samples to analyze sentencing decisions and wanted to be 
certain that processing of the charges was complete. When the data were collected 
(fall 1993), 1989/90 was the most recent year for which we could feel confident that 
virtually all court proceedings were completed. Second, 1989/90 was the mid-point 
of a period with an astounding and disproportionate rise in the admission of black 
persons to Ontario prisons, particularly to prisons serving the Metro Toronto area.^ 

Table 5-1: Number and proportion of accused persons in each offence category in 

sample, by race. 





White 


charged 


Black 


charged 


Proportion of total sample 




sample 


sample 


White 


Black 




% 


number 


% 


number 


% 


% 


Drugs 


25 


204 


27 


221 


12 


13 


Sexual assault 


14 


116 


14 


118 


7 


7 


Bail violations 


20 


167 


15 


125 


10 


8 


Serious assault 


23 


191 


26 


210 


12 


13 


Robbery 


19 


154 


18 


147 


9 


9 


Total 


101* 


832 


100 


821 


50 


50 



Total exceeds 100 due to rounding. 

Obviously, a study based on samples in one jurisdiction of persons charged with one 
of five offence types cannot explain total prison admissions for 1989/90. 



Even in Metropolitan Toronto, there were not enough ofTcnces in every category during the year to use random 
samples. We could obtain a large enough sample for some ofTence types only by including all persons charged 
within the category. 



See Chapter 4 for details. 



1 22 EXAMINING PRACTICES 

Nevertheless, it may shed Hght on whether the exercise of discretion contributes to 
differential imprisonment rates. 

The Commission collected a large amount of data on the personal characteristics of 
accused in the sample, including their criminal histories, if any. This permitted the 
exercise of discretion to be examined in three stages. First we compared outcomes 
for black and white accused at both stages of the remand process: police detention 
and bail hearings. Because this analysis clearly revealed racial differences across the 
five charges and for some specific offences, we then turned to other characteristics 
of the accused. We conducted separate, detailed analyses of criminal history and ties 
to the community, as described by the police, to see if these factors might account 
for differential rates of imprisonment. Finally, we analyzed the overall impact of all 
the recorded characteristics of the accused to see if race significantly influenced the 
results when previous criminal histories and ties to the community were taken into 
account. 

The Commission's decision to use matched samples of persons charged with the 
same offences has strengths and weaknesses. Its main strength is that it largely 
eliminates the possibility that any difference in imprisonment outcomes is due to 
different patterns of (alleged) offending." Since the matched samples of black and 
white accused compare virtually the same numbers of people charged with each 
offence, the analysis could focus specifically on the exercise of discretionary powers 
that produce imprisonment before trial. This approach meant, in short, that we could 
answer a simple question fairly easily: do the data indicate that black accused are 
imprisoned before trial while white persons accused of similar offences are not? 

This approach also allowed us to test for variations across a limited range of 
offences. The prison admissions data confirmed our preliminary consultations, which 
suggested that racial inequality in pre-trial detention decisions is pronounced for 
some offences, but less evident for others (see Chapter 4). Such results could be 
explained by different patterns of alleged offending or differences in police charging 
practices. Another explanation is that racial bias in the remand process involves a 
complex and subtle response to combinations of the accused's race and specific 
offences. (These explanations are obviously not mutually exclusive.) 

Subtle and complex forms of racial bias in the exercise of discretion are central to 
the Commission's mandate. By selecting samples of black and white persons charged 
with a small range of offence types, we were able both to test for differential 
treatment, and also to see if it appeared consistently across a (limited) range of 
offences or was mostly related to specific charges. 

The main limitation of our approach is that we do not know the extent to which the 
same patterns would appear in imprisonment decisions about persons charged with 
offences other than those in the sample. We do not know, for example, if 



But see discussion of the drug charges below. 



Imprisonment before Trial 123 



comparisons of black and white persons charged with common assault or with theft 
over $1,000* would have shown larger differences, smaller differences or no 
difference in outcomes. 

Another limitation is that the analyses of the total sample weight each offence type 
equally rather than by reference to its frequency among all recorded crimes. This 
provides a reasonable way to analyze these data without distorting comparisons of 
black and white samples in this study. However, the differential outcomes found in 
the total sample should not be generalized to all criminal offences. 

The study is also limited by the restriction of the sample to adult males. Initially, the 
Commission wanted to examine remand decisions for black adult women and male 
youths, and for accused from other racialized communities. In each case we came 
across the same problem: the number of persons from these groups imprisoned 
before trial in any one year is small compared with the numbers of white and black 
adult men. Consequently, to obtain large enough samples for the analyses we would 
have had to collect data over a longer term and at much greater cost. 

Restricting the samples to black and white adult males means that the study does not 
tell us the extent to which systemic racism affects remand decisions regarding black 
women or youths, or accused from other racialized groups. This limitation, together 
with the restrictions on the sample due to age and offence types, means the research 
documents racial bias in pre-trial imprisonment decisions but does not determine its 
extent. 

Basic finding: racial inequality in bail decisions 

Across the sample as a whole, 26% of accused were detained after a bail hearing. 
Some of those detained were not subsequently convicted of the offence charged. The 
data show that 18% - close to one in five - of all accused who were not found 
guilty at trial had been denied bail. This experience was significantly more common 
for black accused than white accused: among those who were not convicted, 21% of 
black accused compared with 14% of white accused had been imprisoned before 
their trials. 

Analysis of the outcomes of police and bail court decisions for the entire sample 
shows that white accused (29%) were significantly more likely than black accused 
(18%) to be released by the police. Black accused (30%) were significantly more 
likely than white accused (23%) to be refused bail and imprisoned before their trials 
(Figure 5-1). 



The limitation for this offence has recently been raised to $5,000 by S.C. 1992, c.44. 



1 24 EXAMINING PRACTICES 



Figure 5-1 : Release and imprisonment outcomes, by race, total sample 



60 -r 
50 



H 40 

<D 

0- 30 



20 

10 





48 



29 



18 



■1 



■Black accused 
□White accused 




23 



Police release Court release Detained to trial 



Comparisons of detention decisions for specific offences show - 

• dramatic differences for white and black adult males charged with drug offences. 

• significant differences for white and black adult males charged with serious non- 
sexual assaults. 

• no statistically significant differences for white and black adult males accused 
charged with sexual assaults, bail violations and robberies. 

Figure 5-2a, which represents the entire drug charge sample, shows that, overall, 
white accused (60%) were twice as likely as black accused (30%) to be released by 
the police. Black accused (31%) were three times more likely to be refused bail and 
ordered detained than white accused (10%). Figure 5-2b represents only that portion 
of the drug charge sample held for a bail hearing. It shows that 44% of these black 
accused, compared with 27% of the white accused, were refused bail and imprisoned 
before trial. 

The differences in release outcomes for black and white accused charged with 
serious non-sexual assault were also significant, but not as large as in the drug 
cases. Figure 5-3 shows that over a third (37%) of white accused facing serious non- 
sexual assault charges were released by the police, but only a quarter (24%) of the 
black accused were released at that stage. Of those not released by the police, 84% 
of white accused, and 73% of black accused were granted bail at court. Because of 
the relatively small numbers, however, this difference was not statistically 
significant. 



Imprisonment before Trial 125 



Figure 5-2a: Release and imprisonment outcomes, by race, drug charge sample 



70 




60 



Black accused 
□White accused 




30 31 




10 



Police release Court release Detained to trial 



Figure 5-2b: Bail hearing outcomes, by race, drug charge sample 



80 



c 

8 



73 




■Black accused 
□White accused 



Court release 




27 



Detained to trial 



These findings are highly suggestive. But without more analysis, it would be 
premature to infer from them direct racial bias in detention decisions. What appears 
to be a clear relationship between race and imprisonment could be masking other 
legally relevant differences between white and black accused. Findings of such other 



1 26 EXAMINING PRACTICES 



Figure 5-3: Release and imprisonment outcomes, by race, serious assault sample 



60 
50 



£ 40 

8 



53 



37 




■Black accused 
djWhite accused 




10 



Police release Court release Detained to trial 



differences would not necessarily disprove that systemic racism influences pre-trial 
imprisonment decisions, but would shift the focus of concern to potential sources of 
indirect bias in the remand process. 

To look for other factors that might account for the racially unequal results, we 
analyzed four characteristics across all offences: 

• previous criminal history, 

• employment status, 

• fixed address, and 
"marital" status. 

We also looked more closely at the nature of the charges laid in the drug offence 
sample. 

Nature of the charge: the special case of drugs 

Since this study matches samples of black and white persons charged with the same 
types of offences, it largely eliminates the significance of "nature of the charge" as a 
reason for differences in bail outcomes. Drug charges, however, are special under 
the law. Simple possession charges under the Narcotic Control Act, and all drug 
charges (including trafficking) under the Food and Drugs Act, are governed by the 
standard bail procedure. This procedure presumes that an accused person detained 
by the police will be released after a bail hearing, and requires a crown attorney to 
"show cause" for imprisonment. By contrast, trafficking, possession for the purposes 



Imprisonment before Trial 127 

"show cause" for imprisonment. By contrast, trafficking, possession for the purposes 
of trafficking and importing charges under the Narcotic Control Act are "reverse 
onus" offences, which means that the bail process is based on a presumption of 
detention (see below). 

This difference in operating norms is significant to release outcomes because 
persons charged with reverse onus offences cannot be released by the police and 
must make the case for release at the bail hearing. Therefore, if a higher proportion 
of black accused than white accused in the sample were charged with a reverse onus 
drug offence, then some or all of the difference in outcomes might be due to the 
nature of the charge. Such a finding would not allay concerns about systemic 
racism, but might suggest that the main problem lies with the law that establishes 
reverse onus offences, or with charging decisions rather than detention decisions. 

A small supplementary study conducted by the Commission based on later data 
supports the possibility that differences in the drug charges laid against black and 
white accused may contribute significantly to differential imprisonment before trial. 
This study of charges laid by 5 District Drug Squad of the Metropolitan Toronto 
Police in 1992 shows that among those charged with drug offences, white accused 
(41%) were more likely than black accused (21%) to be charged with simple 
possession. Black accused (79%) were more likely than white accused (59%) to be 
charged with the more serious charges of possession for the purposes of trafficking 
or another trafficking offence (under the Narcotic Control Act). Analysis of police 
release decisions for this sample show that black accused were significantly less 
likely to be released.' 

The data in the major study, however, do not generally suggest that differences in 
the nature of the charge explain the differential outcomes. Analysis of the drug 
charge sample indicates three important facts: 

• Regardless of race, accused who were charged with a reverse onus offence were 
more likely to be detained pending trial than those who were charged with other 
offences. This finding suggests that the nature of the charge affects the results of 
bail decisions for drug offences. 

• No statistically significant difference was found in the proportions of black and 
white accused who were recorded as charged with a reverse onus offence. This 
finding suggests that the differential outcomes seen in Figures 5-2a and 5-2b 
were not due to differential charging. But we cannot be sure of this conclusion 
because of the incompleteness of the record. 

The data on file do not include the specific charge laid against 68% of black 
accused and 53% of white accused. 



Black and white accused in this sample also differed in that black accused were more likely to be described by the 
police as unemployed than white accused. White and black accused were equally likely to have a criminal record, 
and to have ties to the community such as a fixed address. 



1 28 EXAMINING PRACTICES 

It is fruitless to speculate about differences in charging patterns in the absence of 
adequate evidence. But available evidence does not suggest that black accused in 
this sample are significantly more likely than the white accused to be facing a 
reverse onus charge." Thus, on this evidence there is no reason to believe that the 
racial inequality in detention decisions for those charged with drug offences is due 
to differences in the type of charge laid. 

Prior contact with the criminal justice system 
Criminal record 

"Criminal record" is a complex concept that can be measured in different ways. We 
selected six key aspects of criminal records as criteria for comparing black and 
white accused: 

number of previous convictions for any criminal offences 

time since the last conviction - "currency of record" 

number of previous convictions for violent offences 

number of previous convictions for the same offence as the current charge - 
offence "track record" 

most serious previous conviction 

length of jail sentence(s) for previous conviction(s) 

We first considered whether each aspect appeared to influence the detention 
decision, regardless of race, and then compared its patterns in the records of black 
and white accused. Where we found differences, we considered whether that specific 
aspect of criminal record would account for the disparity in imprisonment. 

Aspects not disclosing significant differences 

One aspect of criminal record - previous conviction for a violent offence - proved 
to be significant to detention decisions, regardless of race. However, black and white 
accused in the sample were equally unlikely to have such a conviction on their 
records. About two-thirds of the total sample had no previous conviction for a 
violent offence. 

Another characteristic - most serious previous conviction - appeared in different 
patterns on the records of white and black accused, but the relevance of the patterns 
to detention decisions was unclear. Of those with a criminal record, white accused 



We compensated for the missing data by sorting the sample into two groups: "known to be charged willi" a 
trafficking (or importing) offence (reverse onus) and "not known to be charged" with a trafficking or importing 
offence. All accused whose specific charges were missing were placed in the latter category (along with everyone 
charged with simple possession). Because the results of release decisions for the two categories reveal a clear and 
significant difference, most of the unknowns were likely facing standard onus charges similar to others in that group. 
Otherwise, their presence in the "not known to be trafficking" group should have meant that the outcomes for the 
"known" and "not known" groups should have been more similar. 



Imprisonment before Trial 129 

were more likely than black accused to have a robbery or break-and-enter conviction 
as their most serious previous offence. The records of black accused were more 
likely than those of white accused to include common assault, another violent 
offence apart from robbery, or a "victimless" offence as the most serious previous 
conviction. 

The previous convictions for violent offences of black accused might be expected to 
make pre-trial imprisonment on the current charge more likely, but the previous 
robbery convictions of white accused would also have made them vulnerable to 
imprisonment on the current charge. Similarly, the data show that, regardless of 
race, accused whose most serious previous offence was "victimless" were less likely 
to be detained on the current charge than accused whose most serious prior 
conviction was break-and-enter. This difference suggests that black accused would 
be less likely than white accused to be ordered detained before trial. Given that the 
patterns of previous offences appear to be comparable, it is unlikely that differences 
in "most serious previous conviction" factor explains the basic findings of unequal 
outcomes. 

Existence and length of criminal record 

As would be expected, existence and length of a criminal record were strongly 
related to imprisonment before trial. The data for the entire sample show that 
regardless of race, accused without a criminal record were less likely to be 
imprisoned (12%) before trial than accused with records of one to five previous 
convictions (27%) or records of six or more previous convictions (45%). 

But across the sample as a whole, black accused (40%) were more likely than white 
accused (35%) to have no previous convictions, and black accused (26%) were less 
likely than white accused (33%) to have a record of six or more previous 
convictions. Though the differences are not large, they are statistically significant. 



Analyses of previous records for each offence type shows - 

• no difference in the existence of a record or number of previous convictions of 
white and black persons charged with drug offences, sexual assaults or serious 
non-sexual assaults. This finding means that the number of previous convictions 
does not explain the harsher outcomes for black persons charged with drug 
offences and serious non-sexual assaults that we document above. 

• a small but statistically significant difference in the number of previous 
convictions of white and black persons charged with robbery. Black accused 
(27%) were more likely than white accused (23%) to have no previous 
convictions, and they were less likely (35%) than white accused (49%) to have 
six or more previous convictions. 

• substantial differences in the number of previous convictions of white and black 
persons charged with bail violation. Black persons charged with this offence 
(35%) were much more likely than white accused (17%) to have no previous 



1 30 EXAMINING PRACTICES 



Figure 5-4: Number of prior convictions, by race, total sample 



50 



§ 30 






■Black accused 
□White accused 




35 




33 



32 




None prior 1 to 5 prior 6 or more prior 



criminal convictions; and black accused (25%) were much less likely than white 
accused (43%) to have six or more previous convictions. These findings are 
interesting because although many more white accused than black accused had 
records and had lengthy records, white accused (35%) were not significantly 
more likely than black accused (34%) to be imprisoned before trial. 

These striking findings - that black accused were less likely than white accused to 
have any criminal record or to have a lengthy criminal record - led us to compare 
release decisions about accused with the same type of record or lack of record. This 
analysis shows that the most dramatic differences in outcomes occur for accused 
without any previous convictions. As Figure 5-5 demonstrates, across the sample as 
a whole, white accused without a criminal record (45%) were almost twice as likely 
to be released by the police as black accused without a record (24%). Black accused 
with no previous convictions (15%) were twice as likely to be denied bail and 
imprisoned before trial as white accused with no convictions (8%). 

The same pattern recurs among white and black accused with one to five previous 
convictions, although the difference is smaller.* The pattern persists among accused 



The police released 24% of white accused, but only 18% of black accused who had a record of one to five previous 
convictions. Release on bail was denied to 23% of white accused but to 31% of black accused who had such a 
record. 



Imprisonment before Trial 131 



Figure 5-5: Release and imprisonment outcomes, by race, 
for accused with no criminal record, total sample 



70 
60 

50 

c 

g 40 



45 



47 




■Black accused 
□White accused 




Police release Court release Detained to trial 



with six or more convictions. ' 

Analysis by specific charge of black and white accused with no previous convictions 
shows - 

• no racial difference in detention decisions for persons charged with sexual 
assaults, bail violations or robberies. 

• a distinct racial difference in detention decisions for persons charged with 
serious non-sexual assaults. As Figure 5-6 shows, only 31% of black accused but 
54% of white accused were released by the police. While 3% of white accused 
without previous convictions were denied bail and detained, 10% of black 
accused were denied bail and detained. 

• a substantial racial difference in detention decisions for persons charged with 
drug offences. As Figure 5-7 shows, 72% of white accused who had no previous 
convictions but only 37% of black accused without previous convictions were 
released by the police. Bail was denied to 3% of white accused compared with 
16% of black accused. 



While accused (16%) were almost twice as likely as black accused (9%) to be released by the police. Release on 
bail was denied to 51% of black accused but to only 41% of white accused with six or more previous convictions. 



132 EXAMINING PRACTICES 



Figure 5-6: Release and imprisonment outcomes, 
by race, for accused witii no aiminal record, serious non-sexual assault sample 



(D 

a. 



70 
60 
50 

40 



54 




43 



■Black accused 
□White accused 



10 



Police release Court release Detained to trial 



Figure 5-7: Release and imprisonnnent outcomes, 
by race, for accused with no criminal record, drug charge sample 



80 -r 



60 



Q. 



72 





■Black accused 
□White accused 



25 



16 




Police release Court release Detained to trial 



Imprisonment before Trial 133 



Among accused with records of one to five previous convictions, the data show - 

• no significant racial differences in detention decisions for those charged with 
sexual assaults, bail violations, serious non-sexual assaults or robberies. 

• a substantial difference in detention decisions for white and black persons 
charged with drug offences. As Figure 5-8 shows, 51% of white accused and 
37% of black accused were detained by the police, and 28% of black accused 
but only 10% of white accused were denied bail. 



Figure 5-8: Release and imprisonment outcomes, 
by race, for accused with 1 to 5 prior convictions, drug charge sample 



60 



20 



10 





50 


- 


51 






1 


40 
30 


37 





39 





■Black accused 
:Whlte accused 



10 



Police release Court release Detained to trial 



Among accused with six or more previous convictions, the data show: 

• no racial differences in detention decisions for persons charged with sexual 
assaults, bail violations, serious non-sexual assaults or robberies. 

• a substantial racial difference in detention decisions for accused charged with 
drug offences. As Figure 5-9 shows, white accused (60%) were four times more 
likely than black accused (15%) to be released by the police, and black accused 
(49%) were more than twice as likely as white accused (19%) to be denied bail. 



1 34 EXAMINING PRACTICES 



Figure 5-9: Release and imprisonment outcomes, 
by race, for accused with 6 or more prior convictions, drug charge sample 



Q. 



70 
60 
50 
40 
30 
20 
10 




60 





■Black accused 
□White accused 



21 



19 



Police release Court release Detained to trial 



Currency of record 

Decision-makers are likely to consider "currency of record," or the time since the 
last conviction, especially when trying to predict if an accused is likely to commit 
an offence before trial. Thus it was not surprising to find in the sample that, 
regardless of race, the time since the last conviction was significant to bail 
decisions. Accused with a conviction within the previous three months were much 
less likely to be released by the police, and more likely to be ordered detained after 
a bail hearing, than accused with a substantial period of "clean time." 

Comparison of white and black accused shows that of those with at least one 
previous conviction, black accused (25%) were more likely than white accused 
(15%) to have been convicted within the previous three months. Conversely, white 
accused were more likely to have been last convicted more than two years before 
the current charge (Figure 5-10). 

Comparisons by offence type show - 

• no statistically significant difference in the currency of record for white and 
black persons charged with sexual assault, robbery or bail violation. 

• significant differences in currency of record for white and black persons charged 
with serious non-sexual assaults and drug offences. As Figure 5- 11 a shows, 28% 
of black but only 8% of white accused charged with serious non-sexual assault 
who had a criminal record had been convicted within three months of the current 
charge. Figure 5-1 lb shows that 27% of black but 15% of white accused 



Imprisonment before Trial 135 



Figure 5-10: Time since last conviction, by race, 
total sample of accused with a criminal record 



3 months or less 



4 to 1 2 months > 



13 to 24 months 

25 to 48 months 

More than 48 months 




■Black accused 
□White accused 



5 10 15 20 25 30 
Percent 



charged with drug offences who had a criminal record had been convicted within 
the previous three months. 



Offence "track record" 

The number of previous convictions for the same or a similar offence as the current 
charge (offence "track record") may be used to assess the risk that the accused 
would commit an offence before trial. Analysis of the data confirms that regardless 
of race, offence track record had a significant influence on detention decisions. 
Accused with no previous convictions for the same offence as the current charge 
were more likely to be released by the police and much less likely to be denied bail 
and detained than those with such a previous conviction. 

Comparison of the offence track records of white and black accused shows - 

• no statistically significant difference across the total sample. About 15% of both 
groups had a previous conviction for a similar offence to current charge. 

no statistically significant difference between white and black accused charged 
with sexual assault, bail violation, serious non-sexual assault or robbery. The 
proportions of accused with a prior conviction for a similar offence ranged from 
5% (sexual assault) to 23% (bail violation). 

a difference between black and white accused charged with drug offences. 
Neither sample had extensive records, but black accused facing this type of 



1 36 EXAMINING PRACTICES 



Figure 5-1 la: Time since last conviction, by race, 
for accused with a criminal record facing serious assault charges 



3 months or less 

4 to 12 months 

13 to 24 months 

25 to 48 months 

More than 48 months 




■Black accused 
□White accused 



5 10 15 20 25 30 35 
Percent 



Figure 5-1 1 b: Time since last conviction, by race, 
for accused with a criminal record facing drug charges 



3 months or less 

4 to 12 months 

13 to 24 months 

25 to 48 months 

More than 48 months 




■Black accused 
□White accused 



10 20 30 

Percent 



charge (25%) were more likely than white accused (15%) to have a previous 
conviction for a drug offence. 



Imprisonment before Trial 137 



Previous prison sentence 

Criminal records that include prison sentences are likely to be viewed as more 
serious than records without prison sentences. Thus it is not surprising to find that, 
regardless of race, accused who had served a prior prison sentence were less likely 
to be released by the police and more likely to be denied bail than those who did 
not have such a record. 

Comparison of the two samples reveals distinct patterns. About the same proportion 
of each group had not served a prison sentence, and the two groups were equally 
likely to have served a sentence of one to three years. White accused (14%) were 
twice as likely as black accused (7%) to have received a long sentence (three years 
or more). By contrast, white accused (20%) were less likely than black accused 
(25%) to have a prison term of one year or less as the longest sentence on their 
records. 

Bail status at the time of charge 

Bail status at the time of charge is very significant to pre-trial detention decisions. 
Persons charged with committing a serious (indictable) offence while free awaiting 
trial for an indictable offence or a breach of a previous bail order cannot be released 
by the police, and at the bail hearing they must overcome a presumption of 
detention. In addition, the Criminal Code specifically identifies bail status at the 
time of charge as a relevant factor in bail decisions. 

These data confirm that bail status has a strong influence on the decisions of police 
officers and justices, regardless of race. While only 9% of those charged while on 
bail were released by the police, 31% of those not on bail were released at this 
point. Release was denied to 38% of those charged while on bail, but to only 20% 
of accused who were not on bail when charged. 

Comparison of the bail status of white and black accused shows that - 

across the sample as a whole, black accused were slightly more likely than white 
accused to be on bail at the time of the current charge. 

• black and white persons charged with sexual assaults, robbery and, of course, 
bail violations were equally likely to be on bail at the time of the alleged 
offence. 

• black persons charged with drug offences (Figure 5-12) and serious non-sexual 
assaults (Figure 5-13) were almost twice as likely as white accused facing the 
same charges to be on bail at the time of charge. 

Serving sentence in the community 

The data show that accused who were serving a sentence in the community - on 
probation, parole or mandatory supervision - at the time of being charged were 
more likely to be detained than those who were not serving such a sentence. But 
since only 3% of white accused and 1% of black accused were recorded as serving 



1 38 EXAMINING PRACTICES 



Figure 5-1 2: Bail status at time of charge, by race, drug charge sample 


100 -r 




80 




83 










Percent 

1 




67 








■■■ 








^^^^H 


■Black accused 




40 


33 


H 


□White accused 








20- 





17 




H 










On bail Not on bail 




~ 



Figure 5-1 3: Bail status at time of charge, by race, serious non-sexual assault 

sample 



100 



80 



2 60- 



Q. 



84 




16 




■Black accused 
□White accused 



On bail 



Not on bail 



Imprisonment before Trial 139 

such a sentence at the time of the new charge, this factor does not account for the 
differential outcomes. 

Ties to the community 
Employment status 

As we show in Chapter 2, many lawyers and judges recognize that income, poverty 
and economic class are significant to criminal justice decisions such as bail. Some 
of them suggested that apparent racial differences in outcomes of the criminal 
justice process are in reality reflections of racial inequalities in income or 
employment status. 

Our study produced several important findings about relationships among 
unemployment, race and pre-trial release for these accused. Regardless of race, 
however, a large number of accused were recorded by police as unemployed. 
According to the records, 48 percent of the total sample did not have a job when 
they were charged. 

As Figure 5-14 shows, unemployment had a strong influence on detention decisions. 
Employed accused (30%) were more than twice as likely as unemployed accused 
(13%) to be released by the police, and unemployed accused (38%) were more than 
twice as likely as employed accused (17%) to be detained after a bail hearing. 



Figure 5-14: Release and imprisonment outcomes, 
by employment status, total sample 



60 



50 



c 40 

8 

(D 

°- 30 



20 
10 



53 



49 



38 



13 



17 



GD Employed 
uUnemployed 



Police release Court release Detained to trial 



1 40 EXAMINING PRACTICES 



Comparison of the employment status of black and white accused shows - 

• a statistically significant racial difference in unemployment rates across the 
sample as a whole. The police had recorded 44% of white accused and 53% of 
black accused as unemployed. 

• no statistically significant racial differences in the unemployment rates of 
accused persons charged with robbery, sexual assaults and serious non-sexual 
assaults. 

• substantial differences in the unemployment rates of white and black persons 
charged with drug offences and bail violations. Almost two-thirds (64%) of the 
black persons charged with drug offences were described by the police as 
unemployed, compared with 43% of the white accused. The police had recorded 
39% of white and 59% of black persons charged with bail violations as 
unemployed. 

The patterns of pre-trial imprisonment decisions for unemployed white and black 
accused were similar. Most were not released by the police, and a high proportion of 
both groups were denied release at the bail hearing. 

The patterns of release decisions for employed white and black accused were 
different. Figure 5-15 illustrates two important findings. First, employed white 
accused (36%) were much more likely than employed black accused (23%) to be 
released by the police. Second, employed black accused (40%) were more likely 
than white accused (29%) to be required to find a surety as a condition of obtaining 
freedom before trial. 

Fixed address 

The criminal justice system usually views "fixed address" as an indication of an 
accused's "ties to the community," which in turn is an important factor in assessing 
risk of flight before trial. 

Regardless of race, whether an accused person had a fixed address had a large 
impact on release decisions in our sample. As Figure 5-16 shows, accused with a 
fixed address (29%) were ten times as likely to be released by the police than those 
without a fixed address (3%). Also, accused without a fixed address (51%) were 2.5 
times as likely to be denied bail than accused with a fixed address (21%). 

Comparison of black and white accused in the sample reveals - 

• no statistically significant racial difference in the proportions of the accused with 
a fixed address across the sample as a whole. About four-fifths of both groups 
had a fixed address at the time of charge. 

• no statistically significant racial difference in the proportions of accused with a 
fixed address among those charged with drug offences, sexual assaults, bail 
violations and robberies. 



Imprisonment before Trial 141 



Figure 


5-15 


Re 
by 


jlease and impr 
race, employed 


isonmen 
sample 

36 


to 


utcomes, 




Pnline mlRri<;n 


I 


H 


■ 


H||23 
















Bail - no suretv - 


1 


B 


I 


|. 










^19 












■Black accused 
□White accused 
















1 


H 


■ 




H40 


Suretv bail 
















29 














nptflinpH tn trial 


I 


m 


■ 


|. 










16 

J 






c 


» 


10 




20 30 
Percent 


— 1 

40 


— 1 
50 







a distinct racial difference in the proportions of accused with a fixed address 
among those charged with serious non-sexual assaults. The police recorded no 
fixed address for 12% of white and for 22% of black persons charged with 
serious non-sexual assaults. 



Single status 

Single status may also influence bail decisions, inasmuch as these accused are seen 
as less "tied to the community" than accused who live with a partner of the other 
sex. We found that this personal characteristic did influence bail decisions, 
regardless of race. Only 22% of single accused were released by the police, while 
30% of those recorded with partners were released at this stage. Moreover, single 
accused (30%) were twice as likely as those with partners (15%) to be denied bail. 

About four-fifths of both samples of black and white accused were single. 

Detention outcomes for single white and black accused showed a clear racial 
difference. While 27% of single white accused were released by the police, only 
17% of single black accused were released at this point. Release on bail was 
denied to 33% of single black accused and 26% of single white accused. 



142 EXAMINING PRACTICES 





Figure 5-16: Release and imprisonment outcomes, 




by fixed address, total sample 




60 -r 




4-^ 

c 


50- 
40- 
30 




50 




51 




29 




46 




















o Fixed address 
















21 






□No fixed address 












20 + 




















10- 


-, 























3 












- 


i 




Police release Court release Detained to trial 



• Release outcomes for white and black accused with partners revealed a similar 
pattern. The police released 36% of white accused, but only 23% of the black 
accused. Release on bail was denied to 12% of the white accused and 19% of 
black accused. 

Discrimination in detention decisions: the overall picture 

Detention decisions obviously do not involve consideration of each characteristic of 
accused persons in isolation. Instead, the decision-maker attempts simultaneously to 
take account of all relevant evidence. We therefore revisited the data using a type of 
analysis - multivariate analysis - that would show how the factors work together. 
This analysis enabled us to see whether race makes a discemable difference to 
release decisions over and above the different aspects of criminal history and "ties 
to the community."' 



Further details can be found in our Technical Volume. See Appendix B. 



Imprisonment before Trial 143 



The findings show that - 

• across the total sample, race made a small but significant difference to 
imprisonment before trial. Specifically, black accused were more likely than 
white accused to be detained. 

for the separate categories of sexual assault, bail violation and robbery charges, 
race did not make a significant difference to whether the accused was 
imprisoned before trial. 

• for serious non-sexual assault charges, race made a small but significant 
difference to likelihood of imprisonment before trial. 

for drug charges, race made a marked and significant difference to imprisonment 
before trial. Indeed, it appears to have had the strongest impact on differential 
outcomes of all the factors considered. 

This analysis also indicates that employment status has a distinct effect on detention 
decisions. Specifically, the analysis shows that - 

• across all five offences, employment status made a marked and significant 
difference to imprisonment before trial. 

• for drug offences, bail violations, serious non-sexual assaults and robberies (that 
is, every offence category except sexual assault), employment status made a 
marked and significant difference to imprisonment before trial. 

These findings about employment status are important, given the higher rate of 
unemployment recorded for black accused in the total sample, and in the drug 
charge and bail violation samples. They suggest, in particular, that racial inequality 
in labour markets may be transmitted into the bail process, where it contributes to 
racial inequality in imprisonment before trial. 

Summary of findings 

This study of pre-trial detention of white and black persons charged with the same 
offence types reveals evidence of differential treatment across the entire sample. It 
also revealed differential treatment of persons charged with two categories of 
offence: drug offences and serious non-sexual assaults. Within the entire sample and 
the sub-samples, black accused were less likely than white accused to be released by 
the police and more likely to be detained after a bail hearing. 

The differential is pronounced at the police stage of the process for the entire 
sample as well as for those charged with drug offences or serious non-sexual 
assaults. Consequently the bail courts saw a significantly higher proportion of the 



144 EXAMINING PRACTICES 

total number of black accused than of the total number of white accused in these 
samples.* 

The courts granted bail to similar proportions of black and white accused who 
appeared before them, unless the accused were charged with drug offences. Within 
this sub-sample, white accused were more likely than black accused to be granted 
bail. Thus the differential in imprisonment after bail hearings reflect two distinct 
processes. 

For the drug sample, differential decision-making by the police was compounded at 
court, with the result that the difference in pre-trial imprisonment of black (31%) 
and white (10%) accused is particularly large. For the entire sample and the serious 
non-sexual assault sub-sample, disparities in police decision-making affected the 
number of each group that appeared before the courts, but the courts then denied 
bail at similar rates to black and white accused. Because so many more of the black 
accused in the entire sample and serious non-sexual assault sub-sample were brought 
before the courts, however, the similar rate of denying bail resulted in larger 
proportions of all black accused being jailed before trial. ^ In effect, because the 
courts generally granted bail at about the same rate for white and black accused, the 
decisions simply transmitted the disparity created by earlier police decisions. Thus 
similar decision-making by courts applied to the results of differential decision- 
making by the police produced racial inequality in imprisonment before trial. 

Strikingly, the existence, extent or severity of a criminal record does not account for 
the findings of racial inequality in the use of imprisonment, nor does length or 
seriousness of criminal record. 

Existence of a record does not account for the findings because - 

• across the sample as a whole, black accused were less likely to have a criminal 
record than white accused. 

• in the drug charge and serious non-sexual assault samples, black and white 
accused were equally likely to have a criminal record. 



t 



To recap: The police released 29% of white and 18% of black accused across all five offences, which meant that 
71% of all white accused in the sample and 82% of all black accused in the sample were brought before a bail 
court. The police released 60% of white and 30% of black persons charged with drug offences, which meant that 
only 40% of all white persons charged with this offence type were brought before a bail court while 70% of all 
black persons charged with drug offences were brought before a bail court. The police released 37% of white and 
24% of black persons charged with serious non-sexual assault, which meant that 63% of all white persons charged 
with these offences had a bail hearing, as compared with 76% of all black persons charged with these offences. 

For example, as noted above, 82% of black accused and 71% of white accused in the total sample had a bail hearing 
and about 43% of white as compared with 47% of black accused who had a hearing were denied bail. The latter 
difference is not statistically significant. Taking into account the effects of entire bail system on the sample - 
including those released by the police - the proportion of black accused ultimately imprisoned is much larger. 



Imprisonment before Trial 145 

• across the entire sample of accused without prior convictions, and for the 
accused without previous convictions who were charged with drug or serious 
non-sexual assault offences, black accused were significantly more likely to be 
denied release than white accused. 

Length of criminal record does not account for the findings because - 

• across the sample as a whole, black accused were less likely than white accused 
to have a lengthy criminal record. 

• in the drug charge and serious non-sexual assault samples, black and white 
accused were equally likely to have a lengthy criminal record. 

• across the sample of accused with lengthy records, and also among those with 
lengthy records who were charged with drug offences, black accused were 
significantly more likely to be denied release than white accused. 

Seriousness of record does not account for the findings because - 

• black accused were less likely than white accused to have served a lengthy 
prison sentence prior to the current charge. 

• offences on the records of black accused were no more serious than offences on 
the records of white accused. 

While existence, length and severity of criminal record do not account for the 
findings of differential detention for black and white accused, offence track record, 
currency of record, and bail status at the time of charge likely contributed to racial 
difference in pre-trial imprisonment outcomes. But these factors do not explain all 
the difference. In particular, neither offence track record nor the time since the last 
conviction has any bearing on the racial difference in imprisonment of accused 
without prior convictions. 

Accused without previous convictions may be on bail at the time of charge. The 
findings show that across the sample as a whole, and in the drug charge and serious 
non-sexual assault samples, black accused were more likely than white accused to 
be on bail when charged. But this difference between the two groups accounts for 
only a small part of the overall racial inequality in release outcomes. 

Employment status, as described by the police, accounts for some of the racial 
inequality in imprisonment before trial, both for the sample as a whole and for the 
drug charge sample. But although it is clearly significant, employment status does 
not fully explain the findings of racial inequality. The other aspects of ties to the 
community that we examined - fixed address, and single status - also fail to 
account for what was found. 

However closely we scrutinize the data, the findings disclose distinct and legally 
unjustifiable differences in detention decisions for black and white accused, across 
the sample as a whole and for some specific offences. The conclusion is 



146 EXAMINING PRACTICES 

inescapable: some black men imprisoned before trial would not have been jailed if 
they had been white, and some white men freed before their trials would have been 
detained had they been black. 

In effect, these findings are evidence of the state exercising discretion as if it has 
more compelling reasons to imprison black adult males before their trials than white 
adult males charged with the same offences. This bias may reflect explicit beliefs 
that black men cannot be trusted to appear for trial, or are more dangerous or 
criminal than white men. But it could also arise from more implicit and subtle 
assumptions, since important characteristics of the release process are likely to 
promote stereotypical decision-making. 

As presently organized, the bail system demands fast decisions, sometimes made 
within minutes, and it expects both the police and bail justices to make predictions 
based on vague criteria and information that is often inadequate. These features 
obviously do not compel decision-makers to rely on racial or other stereotypes, nor 
in any way excuse such reliance. But they establish conditions in which reliance on 
stereotypes, perhaps subconsciously, may make decisions easier. For example, a 
justice who assumes that police testimony about drug charges is seldom mistaken 
and that most black males charged with drug offences sell drugs for profit may 
quickly conclude at a bail hearing that a specific black male accused is likely to 
offend before trial. By drawing on such assumptions, the justice avoids the more 
difficult task of attempting to predict the likely behaviour of that individual. 

However, our findings do not reveal racial bias in the exercise of discretion for each 
offence type in the study. Instead, they show clear variations in release decisions 
within the range of offence types selected. This finding poses the question of the 
extent to which bail decisions about persons charged with other offence types would 
reveal racial bias in the exercise of discretion. The racial bias against black men 
documented in this study also raises questions about the treatment of accused from 
other racialized communities, as well as the treatment of black women and black 
youth. 

The answers to these questions lie in future research. Clearly, however, action to 
eliminate the systemic conditions that permit unjust pre-trial imprisonment of 
racialized accused should not wait until more is known. It should begin immediately. 

Moving forward: analysis and recommendations 

The Commission's findings provide clear and convincing evidence that the Ontario 
bail system unjustly imprisons black or other racialized accused before trials. 
Several aspects of the bail process contribute to the problem; while each taken alone 
may have only a limited effect, together their impact is devastating. The findings 
demonstrate clearly the need for remedial action throughout the bail system to 
enhance fairness, promote equality, secure accountability and ensure restraint in the 
use of imprisonment before trial. 



Imprisonment before Trial 147 

Two fundamental principles underlie the Commission's recommendations. The first 
is the principle of the rule of law requiring no greater intrusion on the liberty of any 
individual than can be strictly and legally justified by the state. The second is that 
the law must reflect equality not only in its content and administration but also in its 
consequences. 

Arrest and police detention 

As the Commission's major study demonstrates, police actions may contribute 
significantly to racial inequality in imprisonment before trial. Most obviously, the 
police make the critical decision about whether to arrest an accused person, and in 
most circumstances they also decide to release or detain pending a bail hearing. In 
addition, the police prepare "show cause" reports that summarize information about 
the accused and the alleged offences. Crown attorneys generally use these reports 
when deciding if the state should seek imprisonment of an accused, and when 
making submissions to a justice at a bail hearing. This aspect of the police function, 
no less than the arrest and release powers, may be influenced by social constructions 
of black and other racialized people as more likely than white people to warrant 
detention before trial. 

Exercise of the arrest power is highly discretionary and, except when the police 
obtain prior authorization in the form of a warrant, it is difficult to scrutinize. As the 
Law Reform Commission of Canada noted, this discretion and low visibility make 
the arrest power open to many types of abuse, including discriminatory treatment. '^ 
In recent years, Ontario judges have recognized the potential for racial bias in the 
exercise of the police "search and seizure" power, which frequently precedes arrest.' 

The arrest provisions of the Criminal Code are intended to limit the use of this 
highly coercive police power and to promote alternative methods of launching 
criminal proceedings. The Code also appears to require release from police custody 
unless the accused is charged with an indictable offence that carries a maximum 
sentence of more than five years. However, the law permits police detention if it is 
believed necessary to ensure that the accused attends court, or to promote the public 
interest in preventing crime or in investigating the incident that led to the arrest. 

These laws - characterized as "unduly technical," "poor[ly] organiz[ed]," 
"incoheren[t]" and "too broad"" - may fail to provide clear guidance to the police 
about the proper use of the discretion to arrest. Given the general nature of the law, 
development of more detailed guidelines for working officers, with corresponding 
training to emphasize the principle of restraint, is clearly warranted. However, we 
have found little to assist officers in their daily work in Ontario. It was 
disappointing to learn, for example, that the Policing Standards Manual prepared by 
the Ministry of the Solicitor General and Correctional Services does not provide any 



See Chapter 10 for the Commission's flndings of racial inequaJity in the use of discretion to stop people in cars and 
on foot. 



148 EXAMINING PRACTICES 

guidelines, directives or standards for exercising the power to detain arrested 
persons.''' Though some police services produce their own guidelines on the release 
process,' they do not give officers clear and specific directives about deciding 
whether to detain arrested persons. 

The officer training manuals used at the Ontario Police College and Metro Toronto's 
CO. Bick College include materials on arrest and detention powers. These materials 
are comprehensive and accurately state the extent of police powers. They would 
assist officers even more if they gave more emphasis to the duty of the police to 
release arrested persons unless certain conditions are met. 

The Commission's findings demonstrate that without adequate guidance and 
direction on exercising discretion, police detention decisions may too easily fail to 
conform to the principle of equality. There is an obvious need for comprehensive 
and consistent guidelines in police operating norms. 

5.1 The Commission recommends that - 

a) the Ministry of the Solicitor General and Correctional Services, in 
consultation with interested community organizations, lawyers, police services 
and police associations, develop operating guidelines based on the principle of 
restraint in exercising powers to detain arrested persons and to impose conduct 
restrictions upon release. The guidelines should be made public. 

b) police officer training materials and programs be modified and standardized 
to reflect the principle of restraint in exercising the arrest power and the duty 
to release arrested persons. 

c) the Ministry of the Solicitor General and Correctional Services monitor 
operating guidelines and training programs to ensure that all materials on 
police detention and release reflect the principle of restraint embodied in the 
Criminal Code. 

Police use of the arrest power, like so much of their street-level discretion, is 
difficult to control without an effective monitoring system.^ As a first step towards 
effective monitoring, it is essential to make decisions to arrest without warrant more 
visible. It should not be a great burden for the arresting officer to articulate the basis 
for exercising the discretion to arrest when the accused is brought to the police 
station. 

Requiring the officer to record his or her reasons in writing would have the benefit 
of explaining how the discretion to arrest was exercised according to law. Moreover, 



Both the Metropolitan Toronto Police and the Hamilton-Wentworth Regional Police have procedural directives on 
this topic. Other urban police services we consulted reported that they do not maintain standing orders or directives 
on police detention. 

In Chapter 12 we set out our proposal for a comprehensive, system-wide mechanism to monitor and report on 
systemic racism in the criminal justice system. Monitoring the arrest power is an essential part of this mechanism. 



Imprisonment before Trial 149 

written reasons would give the officer in charge a more explicit factual basis for 
exercising the statutory power of review. The reasons would also give accused 
persons clear explanations of why their liberty is being denied and afford them an 
opportunity to correct any factual errors or mistaken assumptions. In addition, the 
documentation could facilitate access to relevant information at a subsequent bail 
hearing. Finally, the process of articulating reasons should help prepare police 
officers to explain why they chose to depart from the important principle of restraint 
in exercising their arrest power. 

The Commission proposes that both the arresting officer and the officer in charge 
should be required to give written reasons for detaining suspects. These reasons 
should be read to the accused, forwarded to the crown attorney responsible for the 
bail hearing, and disclosed to the duty or defence counsel who represents the 
accused at bail court. Accused persons should be given a specific opportunity to 
correct statements or assumptions made in the police explanation for detention. 
When possible, the police explanations and the responses of accused persons should 
be videotaped, and crown counsel and defence counsel should be told if a videotape 
recording was made. 

5.2 The Commission recommends that - 

a) upon arrival at a police station with a detained person, an arresting ofTicer 
be required to complete a form explaining why the accused has not been 
released. The form should be counter-signed by the officer in charge. 

b) an officer in charge who decides not to release the accused be required to 
record an explanation of the decision on the form used by the arresting officer. 
The officer in charge should also be required to explain the reason for 
detention to the accused and provide an opportunity to respond. Any response 
by an accused should be recorded on the same form as the reasons given by the 
police officers. 

c) crown attorneys at the bail hearing be required to disclose to defence or duty 
counsel the written police explanations for using arrest and detention powers, 
as well as the response, if any, of the accused. 

d) police explanations for detention and responses of accused persons be 
videotaped whenever possible. The existence of such a videotape should be 
disclosed in writing to crown counsel at the bail hearing, who in turn should be 
required to disclose it to duty or defence counsel. 

Conditional release by the police 

One reason the police have traditionally given for failing to release arrested persons 
is that they wanted to impose enforceable conditions on the accused. Though the 
Criminal Code permits an officer in charge to require financial guarantees that the 
accused will appear at court,'' it has not, until recently, allowed the police to impose 
conduct restrictions before trial. The police maintain that conditions such as 
requiring the accused to stay away from a specific address are often sufficient to 
safeguard the public interest in crime prevention and the police investigation. It was 
suggested, therefore, that if the police were empowered to impose such conditions 



150 EXAMINING PRACTICES 



they would release some or many accused whom they now detain solely in order to 
secure conditions at a bail hearing. 

Parliament responded to these concerns by granting the police discretion, as of April 
1, 1995, to release accused persons subject to certain restrictions on behaviour. 
These include: remain within a specified territorial jurisdiction; notify police of 
change of address, employment or occupation; abstain from communicating with 
named parties or going to certain addresses; and deposit passport. "" 

Since the police power to impose release conditions came into effect late in the 
Commission's mandate, we were unable to evaluate its impact. Given our other 
findings about police discretion, however, we are concerned that this new power be 
exercised with restraint. In particular, it should not be used to impose conditions on 
arrested persons whom the police would in past have released without conditions, 
but solely to promote release of accused people who would otherwise be held for a 
bail hearing. Again it would be desirable and have a restraining effect to require 
officers to articulate why they consider each release condition necessary. 

5.3 The Commission recommends that - 

a) upon deciding to impose conditions on the release of an accused, the officer 
in charge be required to complete a form explaining why each condition is 
deemed necessary. 

b) an officer in charge who imposes conditions on the release of an accused be 
required to explain why and provide an opportunity for the accused to object. 
Any objection by an accused person should be recorded on the same form as 
the reasons given by the officer in charge. 

c) any accused subject to police-imposed conditions be given a copy of the form 
explaining the reasons for each condition. 

The new law offers accused persons some protection against unreasonable or unfair 
conditions by allowing them to seek changes in conditions imposed by the police 
during any attendance in court. If this protection is to be effective, the accused has 
to be aware of the right to apply for a variation, and adequate legal advice and 
representation is required. Duty counsel must be attuned to the danger of the police 
imposing unnecessary or excessive conditions and be prepared to discuss with 
accused persons whether variations are appropriate. 

5.4 The Commission recommends that - 

a) release documents issued by the police contain printed advice that an 
accused may apply to be relieved of release conditions on any appearance in 
court. 

b) duty counsel adopt the routine practice of asking accused persons whether 
they are aware of the right to apply to be relieved of release conditions imposed 
by the police. If requested by an accused person, duty counsel should assist in 
applying for relief. 



Imprisonment before Trial 151 

"Show cause" reports 

A "show cause" report is a written synopsis of the case and the background of the 
accused. Police prepare these reports to help crown attorneys decide whether to seek 
imprisonment of the accused or request conduct restrictions upon release. The 
reports should be factual summaries of what the police know about the alleged 
offence; any prior contacts with the criminal justice system of the accused; and 
information about the accused's background, including employment status, residence 
and personal relationships. Show cause reports may also include any other 
information thought relevant to bail decisions, and police recommendations about 
whether an accused should be imprisoned or released subject to restrictions on 
behaviour until the trial is over. 

Police officers sometimes use their total control over the content of show cause 
reports to comment on accused persons in a variety of irrelevant, and sometimes 
racialized, ways. Commission research shows, for example, that the police 
frequently record judgments about whether an accused is unco-operative or 
otherwise shows a "bad attitude" towards the police. Reasons given for 
recommending imprisonment sometimes consist of little more than mean-spirited 
and often stereotypical perceptions of an accused person. Thus sole-support mothers 
may be judged "irresponsible," transients as "losers," and immigrants as "only out to 
lie," or, as this comment about a young person bom in Laos illustrates, as 
ungratefully exploiting the system: 

"The YOUTH has no regard for other people's property and seems not to appreciate 
the life he has been handed in this country ... This YOUTH should be held in 
custody to ensure he does not deprive any more unsuspecting citizens of their 
rightfully owned property." 

Of particular concern is what appears to be a routine practice in some jurisdictions 
of recording and commenting on the accused's immigration history and status or 
country of origin. In some circumstances, status in Canada may be relevant for 
crown attorneys to consider, but in most cases it is irrelevant. Nevertheless, show 
cause reports frequently contain considerable detail about the accused's arrival in 
Canada and current immigration status. 

Such information in show cause reports is often irrelevant because it is not linked to 
concerns that the accused will fail to attend court for trial or any other bail 
consideration. Why is such information included? Some officers may think, 
consciously or subconsciously, that foreign-bom people alleged to have committed 
offences should be singled out. Another possibility is that the operating norms of 
policing may encourage officers to act as if foreign-bom accused should be singled 
out even if the investigating officers do not themselves share this belief Police 
officers may also include such information because they believe it may subtly 
influence the decisions of crown attorneys and justices even if it is not specifically 
tied to a recommendation. Clearly, racialization of accused persons for any of these 



152 EXAMINING PRACTICES 

reasons is unacceptable and should no longer be tolerated by the criminal justice 

system. 

Information about immigration status or history in Canada may also accompany 
police recommendations to detain an accused or attach conduct restrictions to bail. 
For example, one comment accompanying a police recommendation states, "... the 
accused is a newcomer to this country but quickly learned how to make a living 
without working for a living." Another describes the accused as having "everything 
to gain by lying and nothing to lose due to the fact that he is a visitor in this 
country ..." Even when the question of whether the accused ordinarily resides in 
Canada (or Ontario) may be significant to the bail hearing, there is no excuse for 
officers presenting the information in a derogatory manner, or using it to make 
judgments about the accused's character. 

Racialization of accused people in show cause reports, and other unprofessional 
commentary about accused persons indicate a clear need for more guidance to 
officers about the purpose and appropriate content of these reports. The Ministry of 
the Solicitor General and Correctional Services should take the initiative by 
providing police officers with guidelines about factors relevant to show cause 
reports. Crown attorneys, as the recipients of show cause reports, can also help 
eliminate inappropriate commentary and references to irrelevant information that 
racializes accused persons. Whenever the relevance of such a comment or reference 
on a show cause report is not obvious, a crown attorney should ask the police to 
explain in writing why the information is included. 

5.5 The Commission recommends that - 

a) the Ministry of the Solicitor General and Correctional Services, in 
consultation with interested community organizations, lawyers, police services 
and police associations, develop a checklist of information about an accused 
person relevant to show cause reports. 

b) crown attorneys request the police to explain in writing the relevance of any 
reference to an accused person's immigration status, nationality, race, ethnicity, 
religion, place of origin or birth that is contained in a show cause report. 

Commission research also disclosed a problem with police sources of information 
that may harm refugee claimants from certain countries. Police officers usually 
obtain information about immigration status from the Canadian Police Information 
Centre (CPIC, a computer system shared by the police and other law enforcement 
agencies) or Citizenship and Immigration Canada. Since the police are not generally 
trained on the complexities of Canada's immigration regime, they may simply accept 
and transmit what they learn from these sources. 

Sometimes, however, the information recorded on CPIC or provided by an 
immigration official does not give a true picture of a person's status. For example, 
all refugee claimants whose claims are denied are technically subject to deportation, 
and official immigration information may describe them as under a removal order. 



Imprisonment before Trial 153 

But as a matter of policy Canada does not generally deport individuals to some 
countries.' Thus, whatever is stated on the formal record, individuals who would be 
returned to one of these countries are not in practice subject to an effective removal 
order. 

This difference in information is potentially a source of considerable confusion,^ and 
may result in unjust imprisonment before trial. Police officers who faithfully record 
that an accused is "under a removal order," and crown attorneys and bail justices 
who receive this information, might view the accused quite differently if they knew 
that the immigration department has no intention of deporting him or her in the 
foreseeable future. 

The solution to this problem lies in the police obtaining more accurate information 
about the status of refugee claimants whose claims are denied. There is no reason 
why the police cannot determine the true status of an individual said to be subject to 
removal. Lists of countries to which Canada does not deport are available. 

5.6 The Commission recommends that police not refer to an accused person as 
being under a removal order in show cause reports without verifying that 
Citizenship and Immigration Canada intends to remove the person from 
Canada. 

Preparation for bail hearings 

As recognized in the Canadian Charter of Rights and Freedoms, prompt access to 
legal advice upon arrest or detention is a fundamental right.* While this right is 
unrestricted, persons in police custody usually exercise it in anticipation of 
questioning by police. In practice they may have little further opportunity to consult 
a lawyer to prepare for a bail hearing. An accused person who remains in custody 
after questioning does not usually have another opportunity to consult a lawyer 
before arriving at bail court. As a result, many prisoners are wholly unprepared for 
their first appearance in bail court. 



At the time of writing, Canada was not generally deporting refugee claimants to Iran, Sri Lanka or Sudan, among 
other countries. 

In response to inquiries from the Commission, a Citizenship and Immigration Canada official acknowledged that 
"police misinterpretation of detailed explanations of current status is possible." (Internal memorandum dated Feb. 
I, 1995, from Hallam Johnston, Director General, Enforcement Branch, National Service Sector, to Luke Morton, 
Counsel, Legal Services, Citizenship and Immigration [on file].) 

Canadian Charier of Rights and Freedoms, s. 10(b). In Ontario, emergency legal advice is available to arrested 
persons 24 hours a day via a toll-free telephone line. All persons in police custody are entided to use this service, or 
they may contact a lawyer of their choice if they are able to pay for advice. The police are constitutionally required 
to tell arrested persons about the right to consult a lawyer. Police officers must also tell arrested persons about the 
emergency service, and ask if the person would like to speak to a lawyer. (R. v. Brydges [1990] I S.C.R. 190). 



154 EXAMINING PRACTICES 

Such unprepared prisoners tax the already overstressed duty counsel system. Duty 
counsel have no control over the rate at which prisoners are transported to courts. If 
large numbers of unprepared prisoners arrive at the same time, duty counsel may be 
unable even to interview them properly, still less to provide full advice or verify 
information about sureties, employment or residence. One consequence may be 
postponement of the bail hearing to obtain further information. Another is that bail 
conditions may be imposed that are beyond the financial means of the accused. In 
either event, the accused must be held in custody until a subsequent court 
appearance. In this way accused persons continue to be deprived of their liberty, and 
both the courts and prison systems incur unnecessary costs. 

Often the period in police custody between completion of police questioning and 
appearance in court lasts several hours, which could be used to prepare for the 
hearing. For example, someone who could act as a surety (who guarantees to pay a 
sum of money if the accused does not appear for trial) could be called, or 
independent confirmation of employment or residence obtained. Unless accused 
persons have previous experience with the bail system, however, they are unlikely 
even to know what to do, and all accused persons in police custody find it difficult 
to make contact with other people. 

Custodial remands due to lack of preparation are clearly undesirable because they 
significantly disrupt the life of accused persons. They are also extremely expensive 
for the justice system. Resources are wasted to incarcerate the accused and transport 
them between court and prison, and rescheduled bail hearings consume precious 
court time. Clearly, it would be better all around to minimize the number of bail 
hearings that are adjourned essentially because the accused is unprepared. 

The problem could be alleviated if properly trained and supervised paralegals 
assisted accused persons prior to the initial interview with duty or defence counsel. 
Such "bail interview officers" could attend at police cells where accused persons are 
being held pending transportation to court. They would conduct initial interviews to 
determine whether the accused needs an interpreter, or verification of an address or 
employment, or if a potential surety is available. The paralegal could then inform 
defence or duty counsel which would facilitate counsel's bail interview with the 
accused. 

5.7 The Commission recommends that - 

a) the Ontario Legal Aid Plan establish the position of "bail interview officer" 
to assist persons detained by the police to prepare for bail hearings. 

b) legal aid area directors work together with members of the local bar, crown 
attorneys and representatives of interested community organizations to 
establish a training program for bail interview officers. The program should 
include working with interpreters and interviewing skills, as well as information 
on the bail system and anti-racism. 



Imprisonment before Trial 155 

c) legal aid area directors establish co-operation protocols with local police 
services to secure access to police holding cells for bail interview officers and to 
arrange for interviews to be conducted in private, 

A more systemic solution to the problem of unprepared accused may be possible in 
densely populated urban areas: to extend the operating hours of bail courts. If, as in 
some United States jurisdictions, bail court were available 24 hours a day, all 
relevant information could be assembled and accused persons properly prepared 
before hearings proceed. While an accused person may have to wait some hours for 
a hearing, adjournments due to lack of preparation should be rare if bail court is in 
session at all times. 

The Commission was pleased to learn of a pilot project in the Metropolitan Toronto 
area for an expanded bail court. The present plan is for bail justices to be available 
20 hours a day to deal with uncontested bail matters, but there is no provision for 
duty counsel or crown counsel staffing, at least during the start-up phase. The 
expanded bail court could reduce unjust and costly remands into custody and should 
be fully supported. 

Judicial detention 

Police decisions and the information that officers provide are highly significant to 
imprisonment before trial, but police officers do not determine what will happen at 
bail hearings. The principles governing judicial detention are established in the 
Criminal Code, which gives crown counsel and bail justices crucial discretionary 
powers. The availability of alternatives to imprisonment may also have a significant 
influence. 

The Commission's recommendations concentrate on crown attorneys because they 
play such an important role in decisions to imprison people before trial. In the vast 
majority of hearings, which are governed by the standard presumption of release, the 
crown attorney determines whether the state will even seek detention. Crown 
attorneys also have significant control over the information about the offence and 
the offender that is placed before the court and how the information is presented. 

Ball rules: the reverse onus exceptions 

Since 1972, Canadian law has promoted the principle of restraint in the use of 
imprisonment before trial. To this end, the law generally presumes that an accused 
person will be released on bail and requires crown attorneys to "show cause" for 
release to be denied. It also presumes that accused persons will be released subject 
only to an undertaking - a promise - to attend court for trial, unless, once again, the 
crown attorney "shows cause" for a more stringent guarantee of appearance or 
restrictions on the accused's conduct. 

Five "reverse onus" exceptions to the presumption of release, introduced into the 
law in 1976, deviate from the commitment to restraint in the use of imprisonment. 



1 56 EXAMINING PRACTICES 

In these situations, the law presumes that accused persons will be imprisoned before 
trial unless they "show cause" for release. The law is intended to make release more 
difficult to obtain than under the standard presumption. 

Three of the exceptions concern specific types of alleged offences. Thus when the 
charge is murder or other offences listed in s. 469 of the Criminal Code' bail 
violations, or Narcotic Control Act^ offences of trafficking, possessing drugs for the 
purposes of trafficking, importing, or conspiring to traffic in or import drugs, the 
accused must show cause to obtain release. Another exception applies to persons 
charged with any indictable offence who are "not ordinarily resident in Canada." 
Finally, persons charged with any indictable offence alleged to have been committed 
while they were on bail must also overcome a presumption of detention. 

The Commission's research suggests that in practice, the exception for charges laid 
under the Narcotic Control Act may be contributing significantly to disproportionate 
imprisonment of untried black accused.* This exception arose out of a perceived 
need to strengthen law enforcement to combat the drug trade at the top of the drug 
distribution pyramid. In practice, however, the vast majority of trafficking and 
importing charges under the Narcotic Control Act are laid against minor actors in 
the drug trade. Most people charged with trafficking offences are petty "street 
traders" whose activities are a nuisance to local residents and business. A large 
proportion of persons charged with importing are small-scale couriers, often women, 
whose participation in the drug trade is likely limited. Because such people are 
easily replaced by those who control drug supplies, imprisonment of minor dealers 
and couriers has a negligible impact on the availability of illegal drugs to users. 

In a decision released shortly before the Commission was established, the Supreme 
Court of Canada reviewed the justification for this reverse onus for charges under 
the Narcotic Control Act. Unfortunately, the majority decision accepts the 
conventional rationale for departing from the principle of restraint in these cases. Its 
basic assumptions about importers and traffickers are evident in this comment: 

Most alleged offenders are neither wealthy nor members of sophisticated 
organizations. Drug importers and traffickers, however, have access both to a large 
amount of funds and to sophisticated organizations which can assist in a flight from 



t 



t 



The other offences are: treason, alarming Her Majesty, intimidating Parliament or a legislature, inciting to mutiny, 
sedition, piracy and piratical acts, accessory after the fact to high treason or murder, and bribing a judicial officer. 
Attempting or conspiring to commit any of these offences also creates a reverse onus presumption at bail. 

For equivalent charges concerning drugs regulated by the Food and Drugs Act the standard presumption of release 
applies. 

As noted above, the major study presented in this chapter does not reveal differences in the type of drug charge laid 
against black and white accused, but the study of charges laid by 5 District Drug Squad does show differences. In 
addition, the prison admissions data for 1992/93, reported in Chapter 4, show massive over-representation of black 
people charged with trafficking/importing offences. 



Imprisonment before Trial 1 57 



justice. These offenders accordingly pose a significant risk that they will abscond 
rather than face trial." 

The majority opinion recognizes that some accused charged with trafficking offences 
do not fit this profile, and clearly expresses concern that such people not be 
inappropriately imprisoned before trial. But the majority justices believed that these 
accused, by proving they do not belong to an organized drug ring, can easily show 
cause for release. The majority reasons therefore conclude that the risk of 
inappropriate imprisonment of "small fry" dealers is not significant enough to 
outweigh the risk that "wealthy" and "sophisticated" traffickers and importers might 
be inappropriately released under the standard bail process. 

By contrast, the dissenting opinion maintains that "small-scale" drug dealers are a 
different class of offender than the "prosperous drug lords." It states, in effect, that 
rules that might be appropriate for the "drug lords" are quite unnecessary for the 
petty traffickers who dominate drug prosecutions: 

Those charged with trafficking are often at the bottom of the chain [in the 
commercial drug world] and rarely provide a link to the top .... [I]t is far from 
apparent that the majority of those arrested for organized drug trafficking have large 
amounts of money or organizations which will assist them in escaping. The lowly 
streel vendor, the person most likely to be arrested, cannot count on the distant drug 
lord to run the risk of stealing him out of the country." 

The dissenting opinion also asserts that the opportunity to show cause for release in 
a reverse onus bail hearing offers alleged petty traffickers insufficient protection 
against unfair - and unconstitutional - imprisonment before trial. In response to the 
majority view that petty dealers may avoid detention if they prove they do not 
belong to "a criminal organization engaged in distributing narcotics," the dissent 
makes two points: 

The first difficulty ... is that it is far from clear that a person charged with a more 
minor trafficking offence will be able to convince the judge that he or she is not 
connected to a drug organization. The argument would require the accused, 
presumed to be innocent, to prove the negative proposition that he or she is not part 
of a criminal organization. Criminal organizations, unlike unions and service 
organizations, do not distribute lists of their members. How is one to prove that one 
is not a member? 

Second, the argument does not address the difficulty of the lower-level agent of a 
larger commercial trafficking organization. The street vendor, while criminally 
responsible, may not pose a special risk of pre-trial recidivism or absconding. Yet he 
or she may be unable to establish that they are in no way connected to organized 
crime. There is no just cause for denying bail in such a case, yet bail might well be 
denied on the criteria proposed." 

The Court appears not to have had access to current and accurate information on the 
operation of this reverse onus provision. The Commission's more recent 
investigation suggests that the premises underlying the dissenting opinion are more 



1 58 EXAMINING PRACTICES 

accurate than those of the majority. The practical effect of presuming detention for 
persons charged with trafficking or importing offences is to imprison small-scale 
offenders. Our findings also indicate an additional reason for serious concern about 
the reverse onus exception for Narcotic Control Act offences: its contribution to 
racial inequality in the imprisonment of untried accused. 



Fairness and racial equality in the Ontario criminal justice system would 
undoubtedly be enhanced if Canadian law were to apply the standard presumption of 
release to persons charged with trafficking and importing offences under the 
Narcotic Control Act. Unfortunately, a recent federal government bill to amend drug 
legislation makes no attempt to address the injustices of the reverse onus exception 
for trafficking.^" 

Restoring the standard presumption of release to these offences would also remove 
the anomaly by which persons charged with trafficking in drugs regulated by the 
Food and Drugs Act are treated more favourably than those charged with trafficking 
offences under the Narcotic Control Act. The ordinary presumption of release 
applies to persons charged with trafficking - or any other offence under the Food 
and Drugs Act - no matter how large the quantity of drugs involved or the scale of 
the accused's (alleged) operations. But the reverse presumption of detention applies 
to all persons charged with trafficking or importing offences under the Narcotic 
Control Act, no matter how small the quantity. 

We are confident that making the presumption of release standard would make little 
difference to bail hearings of persons charged with trafficking in or importing 
substantial quantities of drugs. In such cases, crown counsel should not find it 
difficult to argue for detention if that is deemed necessary. 

5.8 The Commission recommends that the Government of Ontario propose to 
the Government of Canada that it repeal the reverse onus provision of the 
Criminal Code for importing, trafficking and related charges under the Narcotic 
Control Act. 

Crown counsel discretion 

The Criminal Code assigns crown attorneys considerable responsibility over 
imprisonment before trial. For the vast majority of charges, which are subject to the 
standard presumption of release, the Code authorizes crown attorneys to set the 
parameters for the justice's decision. It states that - 

the justice shall ... order ... that the accused be released on his giving an undertaking 
without conditions, unless the prosecutor ... shows cause, why the detention of the 
accused is justified or why [any other] order should be made. 

This provision gives crown attorneys the primary say concerning: 
• whether an accused person may be released on consent: 



Imprisonment before Trial 159 



• what reasons for detention are presented to a bail justice; and 

• the extent of guarantees and conduct restrictions a justice is likely to impose as a 
condition of release. 

In view of our findings of racial inequality in imprisonment before trial, crown 
attorneys need to be acutely sensitive to how their exercise of discretion may, 
perhaps inadvertently, contribute to this injustice. Of equal importance is the 
leadership role of crown attorneys in securing justice in the bail system. 

The procedures governing Ontario crown attorneys at bail hearings are set out in the 
comprehensive Crown Policy Manual, which has been in effect since January 
1994."' Many of its procedures should be of considerable assistance to crown 
attorneys as they strive to ensure racial equality in the treatment of untried accused. 
Some provisions, however, may adversely affect members of racialized communities 
or lead people to believe that crown attorneys act in a discriminatory fashion. Other 
elements of the manual's bail procedures could be strengthened to assist crown 
attorneys, as the introduction states, to "play an important leadership role in 
assisting to recognize and eradicate" various forms of discrimination. 

There are three main problems with the bail procedures in the Crown Policy 
Manual. First, it unduly emphas'^Azes immigration status as a significant measure of 
"ties to the community." Second, it fails to alert crown attorneys to the risks of 
inadvertent racial discrimination arising from considering factors such as 
employment history in bail submissions. Third, it generally lacks direction on crown 
attorneys' responsibility to reduce the risk of unfair detention. 

Undue emphasis on immigration status 

The Crown Policy Manual includes a "checklist of considerations" regarding the 
crown's position at bail hearings. Among them is: "Accused not a Canadian citizen, 
no firm roots in the community (should his passport be seized)." 

This provision confuses three unrelated issues: citizenship, "roots in the community" 
and ease of departure from Canada. No necessary connection exists between 
citizenship status and roots in the community. Some non-citizens are firmly rooted 
in the communities in which they live and work, while some lack strong community 
ties. 

The same is true of Canadian citizens. Individuals who have recently moved to a 
new community are obviously much less strongly rooted there than those who have 
lived in the same place all their lives. Thus it is no more sensible to treat 
"immigration status" as a measure of community ties than it would be to list as a 
relevant factor "accused bom in New Brunswick." Neither reveals anything about 
the accused person's present links to the local community. This true concern should 
be stated explicitly, which would avoid the currently unseemly spectacle of crown 



160 EXAMINING PRACTICES 

attorneys in open court referring to the immigration status of persons who have 
spent most of their lives in Canada (see Chapter 7). 

Ease of departure from Canada may be an issue in any bail hearing since the 
primary ground for detention is the risk of the accused fleeing the court's 
jurisdiction. But the merit of linking passport seizure to non-Canadian citizenship is 
questionable. Some non-citizens have well-established connections to other countries 
(and the resources to leave Canada hurriedly); many do not. The same is true of 
Canadian citizens, who face few restrictions on their ability to travel to other 
countries. Thus it is difficult to see why passport seizure should play a special role 
for persons who are not Canadian citizens. 

The Ministry should formulate clearer guidelines to eliminate irrelevant references to 
citizenship or immigration status. These guidelines should identify specific aspects 
of residence and mobility that may be of concern to a crown attorney in deciding 
whether to oppose release. 

Undue emphasis on other "ties to the community" 

The Crown Policy Manual's guidelines and checklists for bail hearings frequently 
refer to employment status and residence as indicators of "ties to the community," 
but fail to warn about the risk of inadvertent discrimination by relying on these 
factors. For example, under the heading "Preparation of the Crown brief for the bail 
hearing," the manual makes the sensible suggestion to develop protocols with local 
police forces respecting the provision of information and liaison for bail hearings. 
However, the suggested protocols include reference to "details of residence and 
employment history." 

Similarly, under the heading "Crown preparation for the bail hearing," the manual 
suggests that in seeking a detention order, crown counsel should state "details of 
residence and employment history." Elsewhere, crown attorneys are directed to 
consider an accused person's education, residence, employment and capacity to 
obtain employment, and personal relationships with friends and family, without 
warning of the potential for discriminatory application. 

Historically, including this type of background information in the show cause report 
was an attempt to limit arbitrary discretion by bail magistrates.^^ Information about 
the personal relationships, residence, and employment of an accused person was 
supposed to enable judges to make fair and rational predictions about the likely 
behaviour of that person if released on bail." Over time, presentation of background 
information by a crown attorney has become routine at bail hearings. 



Imprisonment before Trial 161 

The Commission's investigation suggests two distinct problems arise from how 
crown attorneys use this information.* The first is that the information, which may 
be used in a discriminatory way, may be a poor predictor of the risk of flight. 
Second, crown presentation of the information during bail hearings usually makes it 
difficult for bail justices to separate consideration of the primary and secondary 
grounds for detention. Consequently, accused persons may be inappropriately 
detained on the secondary ground for reasons that do not establish a substantial 
likelihood that they will commit an offence before the trial. 

A substantial body of research in the United States questions the value of basing 
bail decisions on personal information about an accused. These studies suggest that 
residential stability, employment and nearby family contacts are generally unreliable 
indicators of whether an accused person will appear for trial. Summarizing this 
research, Gottfredson and Gottfredson conclude that 

"[while a] logical case may be made easily for the relevance of items presumably 
reflecting roots in the community or employment stability ... there has been ... no 
demonstration that the items used actually are predictive."" 

Even if information about employment history, residential stability and similar 
personal factors were useful in predicting the risk of flight, they indicate little about 
the risk of an accused person offending before trial or interfering with the 
administration of justice. While the Criminal Code clearly separates the two grounds 
for detention and requires a decision on the primary ground before the secondary 
one is even considered, in practice bail hearings are much less structured than these 
provisions would suggest. Crown counsel typically indicates at the outset if the state 
seeks to detain the accused, and, if so, on which ground. The crown then reads into 
the record extracts from the show cause report summary of the allegations, the 
accused's criminal record or bail status (if any), and the police assessment of the 
accused's roots in the community, often referred to as "the background of the 
accused." 

This procedure may be appropriate when the state seeks detention on the primary 
ground because the accused's roots in the community may be relevant to assessing 
the risk of flight. But it is quite unsuitable if the secondary ground is argued to seek 
imprisonment. In these cases evidence about the accused's roots in the community - 
such as length of residence, property ownership, education, homelessness or 
employment status - is almost never relevant to predicting whether that person is 
substantially likely to commit an offence or interfere with justice before the trial is 
over. But because all the information is presented to justices - even when crown 
counsel concedes that the risk of flight does not justify imprisonment - it is easy for 



The Commission's surveys show, for example, that 52% of provincial division judges and 38% of general division 
judges think employment status is "very important" or "important" to bail decisions; a further 30% of provincial and 
54% of general division judges think it is "somewhat important". Similarly, 65% of provincial division judges and 
61% of general division judges think community ties are important or very important to bail, and a further 26% of 
provincial and 32% of general division judges think they are "somewhat important." 



162 EXAMINING PRACTICES 

justices to rely inappropriately on roots in the community to make decisions on the 
secondary ground. Thus individuals who do not have a criminal record, or whose 
criminal histories do not suggest a substantial likelihood of offending may be 
imprisoned, in effect because justices wrongly perceive their lifestyles or lack of 
employment as evidence of criminality. 

Leadership in preventing unfair detention 

As well as avoiding inadvertently contributing to unfair detention before trial, crown 
attorneys should actively exercise their discretionary powers to secure justice. This 
leadership role, which is fundamental to restraint in the bail system, is reflected in 
how crown attorneys discharge their responsibility to "show cause" to detain an 
accused person, make release conditional on financial guarantees or impose conduct 
restrictions. 

The Commission has identified four areas in which crown attorney leadership could 
significantly reduce the risk of racialized persons being unjustly imprisoned before 
trial. The first concerns apparent ambiguities about whether refugee claimants should 
be considered ordinarily resident in Canada, and so subject to a reverse onus 
presumption if charged with an indictable offence. The second concerns the risk of 
unfair detention when release is conditional on financial guarantees that the accused 
is unable to meet. Third is leadership to prevent unnecessary and overly intrusive 
conduct restrictions on accused persons who are released. Fourth is ensuring that 
bail orders are promptly varied if they contain unattainable financial guarantees or 
unnecessary conduct restrictions. The Crown Policy Manual should include clear 
direction in these areas. 

Refugee claimants and the reverse onus presumption 

One exception to the standard presumption of release in the bail system applies to 
persons charged with indictable offences who are not ordinarily resident in Canada. 
We found considerable divergence of views about the meaning of "ordinarily 
resident," especially as it applies to refugee claimants. A consultation with justices 
of the peace who regularly conduct bail hearings revealed that some believe refugee 
claimants are not ordinarily resident no matter how long they have lived in Canada. 
To these justices, the presumption of detention would apply to all refugees charged 
with indictable offences. Other justices of the peace believe, equally strongly, that 
almost all refugee claimants are ordinarily resident because the claim itself 
demonstrates a commitment to Canada and a desire to remain. To them, the standard 
bail presumption of release generally applies to refugee claimants charged with 
indictable offences. As participating justices themselves acknowledged, these 
divergent views are likely to produce unacceptable disparity in practice. 

To promote consistency, the meaning of ordinary residence must be clarified. 
Refugee claimants are residing in Canada and have often established roots in their 
local communities. The decision to claim refugee status is obviously evidence of a 
desire to remain, and many refugee claimants are unable to return to their countries 
of previous residence because of a well-founded fear of persecution. Treating 



Imprisonment before Trial 163 

refugee claimants as not ordinarily resident may contribute to unjust imprisonment 
before trial for racialized accused. 

Crown attorneys should show leadership in preventing unjust treatment of refugee 
claimants charged with indictable offences. They may do so by assuming the 
responsibility of showing cause for detention of such accused. This position should 
be incorporated into the Crown Policy Manual as standard policy. 

Unattainable bails 

Accused persons may be held in prison even after an apparently successful bail 
hearing. This occurs when release is made subject to financial conditions the 
accused is unable to meet, or guarantees the accused is unable to provide 
(unattainable bails). Imprisonment in these conditions is inherently unjust because 
the Crown has not shown cause for detention. 

During our initial visits to prisons, many black and other racialized prisoners, 
especially in the youth detention institutions, said they had been granted bail but 
were waiting for sureties to be confirmed or other bail guarantees to be met. Prison 
staff in many institutions, together with defence and duty counsel, prisoner support 
groups and former prisoners confirmed that substantial proportions of racialized 
accused who are granted bail spend days, weeks or even months, in prison because 
they cannot meet the bail court's conditions for release. One duty counsel gave us 
this example: 

"I had a client fi-om Sri Lanka here as a visitor who was accused of sexually 
touching three children in the neighbourhood where he was living. He had no 
criminal record, no outstanding charges - a man here alone .... It was difficult to 
reach his relatives in his home country ... he was a man fleeing persecution. I ran 
the case by a couple of crowns, and all agreed in this situation they would release a 
person who was normally here without those circumstances on a security [a promise 
to pay if the accused does not appear for trial] of $2,000 or $3,000 - because it was 
a first offence. There was no pattern of [criminal] behaviour .... Bail was set at 
$5,000 cash deposit and later reviewed to $500. The client ended up staying in jail 
for three months. This was a prime example of systemic racism." 

A "snapshot" study conducted by the Ministry of Correctional Services in 1992 
supports concerns about interim imprisonment due to unmet bails - although these 
data did not include race. The study found that 35 percent of the 212 adults and 
youths aged 16 and 17 who had been granted bail by the first day of the study were 
still in prison seven days later.' In a 1994 study, among prisoners who reported that 
they had been granted bail but were still in custody at the time they were 
interviewed (15.8 percent of the sample), two-thirds indicated that the reason for 



A "Bail Conditions survey" during December 16-22, 1991 asked all superintendents to identify "each offender who 
is in custody only because he/she has bail set, but not posted" The study monitored the status of these persons for 
the week following. The Commission has been advised that no analysis of the findings was prepared. We had access 
to a memorandum of instructions to superintendents, and to a survey sheet. 



1 64 EXAMINING PRACTICES 

their continued detention was their inability to meet cash bail or provide an adequate 
surety." 

In most cases bail is unattainable because the accused person cannot find someone 
with sufficient financial means (a surety) to guarantee appearance at trial. 
Sometimes release is delayed despite the availability of a surety because the person 
cannot satisfy a justice of the peace that the specified amount will be paid should 
the accused fail to appear. In other situations sureties withdraw the offer of financial 
support, even after the bail order is made, when they understand more about the 
extent of their legal obligation. In each situation, an accused person whom the court 
has agreed to release on bail is detained until the condition of release is varied or an 
alternative, acceptable surety is found. 

Changes to the provincial administration of the bail system would reduce the risk of 
persons being detained due to inappropriate surety bails. Much would be achieved 
by implementing our earlier recommendations to improve accused persons' 
preparation for bail hearings. At present, especially in the busy urban bail courts, 
duty counsel often do not have the time to conduct the probing but sensitive 
questioning required to elicit reliable information about potential sureties. If duty 
counsel had access to information obtained and verified by bail interview paralegals, 
however, they would be much more able to proceed with bail hearings. 

Equally important is the role of crown attorneys in preventing detention due to 
unmet surety bails. Since crown attorneys establish the parameters within which the 
bail decision is considered and met, they are in practice responsible for the 
attainability of release conditions. As ministers of justice, crown counsel have a 
professional duty to apply the principle of restraint to protect accused persons 
against unjust imprisonment before trial, including when seeking to impose surety 
conditions.^^ 

Conduct restrictions 

Many untried accused who are released after a bail hearing find that their pre-trial 
liberty is subject to a variety of controls or "conduct restrictions." Limits may be 
placed on freedom of movement by means of curfews and area restrictions. 
Consumption of alcohol may be forbidden. An accused may be ordered to report to 
a police officer at regular intervals or not to associate with friends and 
acquaintances. They may be required to carry bail papers - their "freedom tickets" - 
at all times.* 



In some parts of Ontario the police began routinely to request this conduct restriction in the late 1980s, particularly 
for young persons, to facilitate monitoring of compliance with bail orders. Despite criticisms from defence counsel 
and community groups that orders to carry bail papers resemble "pass laws" in South Africa's apartheid regime, 
some bail justices regularly imposed such conditions. Others have always reftjsed. In 1992, Vaillancourt Prov. Div. 
J. held that the requirement to carry bail orders is contrary to the Charter of Rights and Freedoms, stating, "The 
concept of persons having to produce their 'papers' to authorities on demand conjures up the image of a police state 
which is foreign to our country."(/?. v. Williams, Sept. 14, 1992, Ontario Court (Provincial Division)). However, 
Judge Vaillancourt's attention was not drawn to R. v. Shawn P., Sept. 13, 1990, an unreported decision in which the 



Imprisonment before Trial 165 

Non-compliance with such administrative restrictions has serious consequences. 
Breach of bail conditions is itself a criminal offence" for which an accused may be 
arrested even without a warrant.'^ Once arrested, persons charged with this offence 
are jailed until a bail hearing is held. While release after a bail hearing is possible, 
the accused must first overcome a presumption of imprisonment. ^'' 

Our consultations and submissions disclosed serious concerns about unfairness in 
conduct restrictions, particularly for youths.'" We were told, repeatedly, of large 
numbers of restrictions, many of which were said to be unnecessary, being imposed 
on black and other racialized accused. Lawyers and other community members also 
reported it is often difficult, if not impossible, for these youths to comply with 
restrictions such as orders to stay away from areas where they live. They had no 
doubt that conduct restrictions of this type contribute to unfair imprisonment of 
racialized youths before trials. 

Commission surveys of judges and lawyers also revealed perceptions of racial 
inequality in conduct restrictions. One in five recently appointed judges of the 
provincial division, for example, thought that white accused are generally given 
fewer conduct restrictions than racial minority accused. When we asked defence 
counsel about specific conduct restrictions, 37 percent of respondents with a 
substantial racial minority clientele said racial minority accused are more likely than 
white accused to be required to carry bail papers at all times. About one-third of the 
same group of lawyers said racial minority accused are more likely than white 
accused to face three other limitations on freedom: report to the police at regular 
intervals, observe a curfew, and "comply with geographic restrictions." 

Participants in Commission focus groups emphasized the inappropriate use of 
conduct restrictions. Lawyers gave examples of black and other racial minority 
youth being given curfews when the alleged offences occurred during daylight 
hours, and being ordered to stay away from school when the alleged offences had 
no connection with their schools. 

The requirement to carry bail papers at all times was identified as a particularly 
common conduct restriction for black and other racialized youths. Lawyers described 
this control, together with other inappropriate restrictions, as "simply a way of 
keeping tabs on the kids" and "setting them up to fail." One lawyer stated 
emphatically that "the only reason for these bail conditions is to give the police 
control over individuals." 

The principles of fairness and restraint require that any conduct restriction imposed 
pending trial serve specific purposes relevant to the bail system. Undue and 
excessive restrictions may result in accused persons being subjected to arbitrary 
intrusions into their daily lives, which are often bitterly resented. Such restrictions 



Ontario Court of Appeal declined to rule on the constitutional validity of such a provision. 



1 66 EXAMINING PRACTICES 

serve no social purpose and could lead to further charges, such as bail violations, 
that serve no real objective of the criminal justice system. 

Leadership by crown attorneys is fundamental to just conduct restrictions. The 
tendency within our adversary system is to view defence and duty counsel as 
primarily responsible for safeguarding the rights of accused persons. In relation to 
bail, however, crown attorneys have an equally important obligation to prevent 
unnecessary encroachment on the liberty of the accused. Crown attorneys ought to 
request bail conditions only to the extent necessary to secure attendance at court, or 
to prevent commission of an offence or interference with justice before trial. 

Bail variation procedures 

The Criminal Code provisions with respect to bail attempt to protect accused 
persons from unattainable bails and unduly harsh conduct restrictions through 
procedures for varying bail conditions. Applications for variations may be processed 
in provincial division courts, with the consent of crown counsel;^' or by formally 
requesting the General Division of the Ontario Court of Justice to review a bail 
order. In practice, however, the volume of work in many provincial division courts 
has meant that busy crown attorneys may refuse to consider applications on the day 
they are made. Instead, requests for even relatively minor changes to a bail order 
tend to be channelled to the general division, involving a more lengthy, complex 
and costly procedure. During the time necessary to prepare for proceedings in the 
general division, the accused person may be held in detention if bail is unattainable 
or continue to be subject to unfair restrictions if released. 

The Commission is concerned that simple modifications to unattainable bails and 
onerous restrictions apparently cannot be handled expeditiously in all provincial bail 
courts. We are especially concerned that the referral to the general division should 
not, in practice, be required to deal with applications to vary restrictions imposed 
under the new police power (discussed above). Crown attorneys should treat 
expeditious processing of applications to vary bail orders as a high priority. 

5.9 The Commission recommends that the Crown Policy Manual's provisions 
regarding bail be amended to - 

a) eliminate general and irrelevant references to immigration or citizenship 
status. 

b) warn of the potential for inadvertent discrimination inherent in relying on 
such factors as residence and employment history to predict whether an 
accused person will appear in court. 

c) warn crown attorneys that evidence relating to the accused's "roots in the 
community" generally should not be used to seek detention on the secondary 
ground. 

d) direct crown attorneys to treat refugee claimants as ordinarily resident for 
the purposes of bail hearings. 

e) require crown attorneys to ensure that an accused person is not 
unnecessarily detained because a surety bail is set too high. 



Imprisonment before Trial 167 

require crown attorneys to ensure that conditions placed upon release are 
directly and substantially related only to securing the accused's attendance in 
court or to preventing the commission of offences or interference with the 
administration of justice while on bail. Unnecessary and intrusive conditions 
such as "carry bail papers" should be avoided, 
g) direct crown counsel that expeditious processing of bail variation 
applications in provincial division courts be a high priority. 

Bail justices' discretion 

Bail justices decide whether or not accused persons should be imprisoned before 
trial, and whether to require financial guarantees or conduct restrictions of an 
accused who is freed. Commission findings show that black accused do not benefit 
from the exercise of this discretion to the same extent as white accused. Part of the 
problem may be due to the information presented to justices; another likely reason is 
how justices assess risk. While sensitive exercise of crown attorney discretion 
should reduce the likelihood that decisions are based on vague or irrelevant 
information or implicitly discriminatory criteria, bail justices have a distinct role to 
play in preventing unjust detention before trial. 

As judicial officers, bail justices are formally independent of government bodies 
such as the Ministry of the Attorney General. Consequently they are not subject to 
government guidelines and procedures such as those we propose for crown 
attorneys. Increasingly, however, judges and justices of the peace undertake 
education and training programs. Commission findings suggest that among the 
highest priorities of such programs should be skills for identifying conduct in bail 
court that may unduly penalize racialized persons, techniques for avoiding reliance 
on unwarranted assumptions, and methods of recognizing subtle ways in which 
empathy and intuition may discriminate. Education and training programs should 
also include findings from research into reliable indicators of risk, potential 
discrimination in pecuniary release conditions and any specific difficulties that may 
arise from certain conduct restrictions. 

5.10 The Commission recommends that education for justices of the peace and 
judges regarding bail include training to - 

a) avoid assumptions that may subtly discriminate against racialized persons. 

b) avoid discriminatory application of criteria related to community ties. 

c) assess occupation, place of residence and cultural background of accused 
persons to ensure that financial release conditions do not impose needlessly 
onerous burdens. 

d) ensure that conduct restrictions imposed upon release do not interfere with 
the lives of accused persons any more than is strictly required. 



168 EXAMINING PRACTICES 

Objective indicators of risk 

The exercise of discretion at bail hearings centres on predicting how an accused 
person would behave if released. However, the court generally lacks sufficient 
information about the accused. A more fundamental concern is raised by research 
findings cited above that indicate that the standard criteria used in these decisions 
are unreliable predictors of risk and likely to cause unjust imprisonment of poor and 
racialized people. 

The Commission could not find any recent Canadian empirical research on the 
impact of current criteria in the bail system. Concerns about them, however, were 
raised in a background report by staff of the Law Reform Commission of Canada, 
and more recently in the unpublished Barklay Report commissioned by federal and 
provincial Ministries of the Solicitor General. The Law Reform Commission report, 
which stemmed from its study of Aboriginal people and the criminal justice system, 
notes that undue reliance in bail hearings on factors such as unemployment and 
stable residence may have a discriminatory effect. To overcome this problem it 
recommends research to develop "guidelines using empirically based indicators" that 
would "avoid potential unintended discrimination" in the bail system. ^^ 

Various jurisdictions in the United States and Europe have already created 
guidelines, risk profiles or "decision-enabling protocols" to help determine whether 
pre-trial release is appropriate.' While apparently "objective" predictive tools may 
have potential to reduce unjust imprisonment before trial, they would have to be 
designed and used with caution. Predictive factors should be well defined, but 
capable of being flexibly applied to persons who do not fit into standard categories. 
Specialized training on the limitations as well as the appropriate uses and 
interpretation of risk profiles would be essential. 

The Commission strongly favours development of race-neutral indicators of 
successful pre-trial release. However, it would be premature to apply such indicators 
in the form of a risk-profile instrument, or through decision-making presumptions 
and principles. Far more important at present is fundamental empirical research on 
existing court practices and comparative research on alternatives. Such research 
should be sponsored by the Ministries of the Attorney General and the Solicitor 
General and Correctional Services. It should address issues such as whether 
unemployment or lack of a permanent address are reliable, rational indicators of 
whether a person will attend trial or endanger the public if released. The research 
should be widely distributed and used in education and training programs for judges, 
justices of the peace, crown and defence counsel. 



To test the likely effect of predictive tools, Barklay Resources applied the "Pre-Trial Release Instrument" used In 
Marion County, Indiana, to data gathered through interviews with remand prisoners in Ontario. The findings indicate 
that two in every five persons detained in custody would have been eligible for release had the Release Instrument 
criteria been applied to the information reported by the prisoners. Importantly, this research found no evidence of 
racially different outcomes in the Release Instrument criteria. ("Awaiting Trial" [note 24].) 



Imprisonment before Trial 169 

5.11 The Commission recommends that the Ministries of the Solicitor General 
and Correctional Ser>'ices and the Attorney General sponsor research into 
empirically based indicators to assist the courts in deciding whether to grant 
pre-trial release. 

Bail supervision programs 

Bail supervision programs are community-based services that monitor untried 
accused persons. Their general goals are to - 

• provide an alternative to detention of accused persons before trial; 

• promote the accused's compliance with bail conditions and attendance at court 
through supervision and notification of court dates; and 

• decrease possible re-arrests and increase the client's ability to use community 
services effectively. ^^ 

These programs assume responsibility, as directed by a bail court, for accused 
persons who might otherwise be imprisoned because of the risk of flight, and who 
are unable to provide a surety to guarantee appearance at trial. They have operated 
in Ontario since 1979 and are highly regarded by many judges,^" lawyers and police 
officers. 

The agencies currently engaged in bail programs are funded by the Ontario Ministry 
of the Solicitor General and Correctional Services. Chronic underfunding, however, 
has severely limited the amount of supervision they are able to provide. Depending 
on resources, bail programs provide some or all of the following services: 
verification, supervision, interviews, verification and offers of supervision at reviews 
of initial bail decisions (bail reviews), and counselling and referral.* Although the 
number of funded services has risen, the total number of verification^ and 
supervision cases has substantially declined in the past few years. The Ministry 
reports that in fiscal 1993/94, some 6,500 adults and 1,600 accused aged 16 and 17 
participated in bail verification or supervision.'' In fiscal 1992/93 the Ministry 
provided $1.74 million to fund bail programs. The approximate cost per client per 
day is $6, compared with $140 per day for each accused person incarcerated 
pending trial. 



Bail programs are not designed to be professional counselling services, though guidance may be given by staff, 
many of whom have training in social work. In most cases, accused persons are referred to community facilities. 

In fiscal 1983/89 the programs completed 12,280 verification reports. By 1990/91, this had declined to 11,386. 
Projections for 1991/92 (the latest data available to the Commission) were that the programs would complete 7,156 
reports, a substantial reduction (Ministry of Correctional Services, Youth and Community Corrections Branch, 
Program Review: The Bail Verification and Supervision Program, March, 1992). 



1 70 EXAMINING PRACTICES 

Only some parts of the province have bail supervision programs.* No such services 
are available for youths aged 12 to 15. Nor does any agreement with federal 
authorities provide for supervision of persons awaiting disposition of various types 
of immigration and refugee hearings.^ Existing programs for adults and youths aged 
16 and 17 operate on small budgets and may regularly be compelled, under their 
contracts with the Ministry, to "cap" the number of clients under supervision. 

The Toronto Bail Residence, a separate entity with its own board of directors, runs a 
small residential facility, Galbraith Bail Residence, for adult and young offender 
males under supervision. No equivalent facilities exist for women, and no residential 
facilities are run by bail programs outside Metropolitan Toronto.* 

Commissioners visited the Ottawa and Toronto bail programs and corresponded with 
staff about the extent to which black and other racialized persons use them. Neither 
program keeps statistics by racial designation, but staff at the Ottawa program 
reported that it has served few racial minority or Aboriginal clients. At the 
Commission's request, the Toronto program conducted a one-day "snapshot" count 
of its clients. According to the bail supervisors who reported client ethnicity, 
approximately 45 percent of clients served on June 14, 1994, by the Metropolitan 
Toronto^ offices were members of "visible minorities."'* 

Bail program staff report a considerable increase in the numbers of persons who do 
not speak English among their clients. While the programs have few resources to 
employ interpreters they have attempted to overcome the communication barriers 
through recruitment of staff and volunteers, ad hoc arrangements for using court 
interpreters, and relying on clients' friends and family. A welcome initiative on the 
part of the Toronto Bail Program is the creation of a manual for clients in some 20 
languages. 

A nagging worry about bail supervision programs is that they may "widen the net" 
if used for persons who would otherwise have been released subject only to conduct 
restrictions, rather than as a true alternative to imprisonment before trial. Thus 
instead of promoting restraint within the bail system, supervision programs may 
inadvertently result in increased control over accused persons awaiting trial. 



t 



In 1980, the Bail Project became the Toronto Bail Program, soon emulated in Kitchener-Waterloo, Hamilton and St. 
Catharines. By 1991, Sudbury, Sault St. Marie, Brampton, Windsor, Barric, Thunder Bay, Ottawa, Brantford and 
Newmarket had similar programs. 

Bail program contracts with the Ministry currently limit services to persons 16 years of age or over charged with 
criminal offences. Thus, persons detained in custody pending resolution of their status under the Immigration Act 
cannot be considered for bail supervision. 

The Ministry of the Solicitor General and Corrections permits persons on bail to reside in post-sentence halfway 
houses called "community resource centres." Outside Toronto, this is common. 

The program also maintains an office in a city approximately 30 kilometres outside Metro Toronto. 



Imprisonment before Trial 171 

Concerns about costly and wasteful duplication of supervisory services have also 
been raised. A recent review of Ontario bail programs shows, for example, that 
more than one in three bail supervision clients was already reporting to the police or 
the provincial probation service at the time of entering the bail supervision 
program." 

Net-widening is obviously a serious concern, suggesting that the use of bail 
supervision by courts and its relationship to other community-based controls over 
persons on bail ought to be carefully monitored. Nevertheless the Commission 
believes that bail supervision can contribute to restraint in the use of imprisonment. 
The evaluation referred to above concluded that the bail program "is adding a 
humane dimension to the criminal justice system, and may be controlling to some 
extent the present growth in remand numbers."'* Even if bail supervision does no 
more than limit further growth in remand populations, it is still performing a 
valuable function. 

The Commission believes that bail supervision programs should be guaranteed 
secure funding to enable them to improve their capacity to serve members of 
racialized and linguistic minority communities. An expanded program could reach 
out to racialized and linguistic minority communities that may have trouble 
obtaining access to their services. It could also develop supervisory programs 
closely tailored to the specific experiences and needs of different racialized and 
linguistic minority communities. Providing appropriate supervision services to 
youths aged 12 to 15, should be seriously considered. 

Bail supervision programs should no longer be under the jurisdiction of the Ministry 
of the Solicitor General and Correctional Services, which appears to assign them a 
low funding priority.''' Since bail supervision arises from the decisions of the bail 
court system, it would seem appropriate for the Ministry of the Attorney General to 
assume responsibility for the bail program. 

5.12 The Commission recommends that - 

a) the Government of Ontario guarantee funding for existing bail programs 
and increase the number of bail programs to ensure adequate supervision 
services in all urban centres. 

b) bail programs be funded to assist racial and linguistic minority communities 
and, in concert with interested individuals and community groups, develop 
culturally inclusive bail supervision. 

c) bail programs be funded to retain interpretation services. 

d) responsibility for bail programs be transferred to the Ministry of the 
Attorney General and include supervision of persons awaiting disposition of 
immigration and refugee hearings. 

e) the Ministry of Community and Social Services, in concert with existing bail 
programs and interested community organizations, consider the feasibility of a 
bail supervision program for youths aged 12 to 15. 



1 72 EXAMINING PRACTICES 

Access to interpreters 

Consultations, surveys and submissions revealed persistent and serious concerns that 
accused from racialized communities are unnecessarily detained because essential 
interpreter services are inadequate or unavailable. Every aspect of the bail process is 
affected by this problem. 

Police officers told us of accused persons who would have been released had the 
police been able to communicate basic information about the charges and attending 
court. Duty counsel said that lack of interpreter services often means they are unable 
to elicit basic information essential to represent the accused at a bail hearing: 

"We don't have ready access to interpreters at all times .... A client may be in the 
[court] cells, but we can't do anything because the only thing they can tell us is their 
name. Often the interpreter only comes when the person is brought up [into court]. 
Unless it's going to be a consent release, [the accused] is screwed." 

Defence lawyers gave us examples of clients who would have been released if they 
could speak English being jailed until a bail hearing with a suitable interpreter could 
be held: 

"Recently I had a Spanish-speaking client held ... on an alleged 'theft under 
[$1,000],' value of about $40, from Sunday to Tuesday on a holiday weekend - only 
because he spoke no English. He was a landed immigrant, employed, had sureties, 
no record, no other charges." 

"On a contested weekend bail hearing, court will proceed on the spot if the accused 
speaks English. Other language groups are adjourned in custody until Monday ... 
Non-Europeans will most likely have this language problem. Their right to a fair 
bail hearing is paid for by a weekend in jail." 

Interpreters stated that arrangements for using them in bail hearings are inadequate. 
They described bewildered accused being brought into court without any knowledge 
of "whether it is a trial, a bail hearing or whatever." Within a few minutes of seeing 
the accused, an interpreter is expected to verify a common language or dialect, 
assess the accused's vocabulary or level of understanding in the language, explain 
the purpose of a bail hearing, describe what is going to happen in the courtroom and 
obtain information for defence or duty counsel. Many of them spoke of accused 
persons being needlessly imprisoned because interpreters are given too little time to 
perform these complex tasks adequately. 

Perhaps the most chilling evidence concerned linguistic minority accused held in jail 
who are unable to obtain legal advice that could result in their release. Lawyers told 
us of accused who "have been held for weeks at a time without getting legal advice 
in a language they can understand." Similarly, a legal aid worker spoke of ten cases, 
known to him personally, "of Spanish-speaking and Vietnamese-speaking people 
who are sitting in jail without any access to legal aid because of lack of an 
interpreter." 



Imprisonment before Trial 173 

To prevent unjust imprisonment before trial of accused persons from linguistic 
minority communities, access to interpreter services must be greatly improved. 
Chapter 7 of this Report presents general recommendations on the use of interpreters 
in court proceedings. Of specific concern to bail courts are timely notification of the 
need for interpretation services and access to such services outside the courtroom to 
help defence or duty counsel communicate with linguistic minority accused. 

Bail courts must strive to avoid even temporary detention of linguistic minority 
accused when English-speaking accused would be released. Timely notification of 
the need for interpretation services is fundamental to avoiding such injustice. At 
present such information is often included in the material that the police send to 
crown attorneys, but it may not be acted upon until the accused arrives at court, 
when it may be too late to secure appropriate interpretation services. A more 
effective approach is for court administrators to obtain this information from bail 
interview officers, the police, or crown attorneys early enough to arrange for the 
necessary services. 

Within the courthouse, interpretation services should be available whenever duty or 
defence counsel or a crown attorney may need to speak with a linguistic minority 
accused. Access to interpretation services is obviously essential for duty or defence 
counsel to conduct proper interviews in court holding cells. It is also required when 
a crown attorney needs basic information before consenting to release the accused. 
Personal attendance of an interpreter in these situations should be provided 
whenever possible. If an interpreter cannot arrive in time to prevent unjust detention, 
however, interpretation services should be provided through three-way telephone 
communication. 

5.13 The Commission recommends that - 

a) under the supervision of the local administrative judge, court administrators 
develop procedures to ensure early notification of the impending arrival of a 
linguistic minority accused for a bail hearing. 

b) wherever possible, interpreters be available to assist counsel and crown 
attorneys communicate with an accused person outside the bail hearing. If an 
interpreter cannot personally attend, telephone access to an interpreter should 
be available. 

Representation at bail hearings 

Though the liberty of accused persons is at stake in bail hearings, this stage of the 
criminal justice system has low visibility in comparison to the drama of contested 
trials or the tension of sentencing hearings. Recent trends such as the striking 
increase in the proportion of untried prisoners in Ontario institutions is evidence that 
the criminal justice system shows less concern about intrusions on liberty before 
trial than after conviction. Commission findings demonstrate that lack of restraint in 
the use of detention before trial particularly affects black and other racialized 
accused. 



1 74 EXAMINING PRACTICES 

Limitations in legal services at bail may have contributed significantly to the 
problem. Even before the recent crisis in legal aid funding, legal aid fees for bail 
hearings were low and declining. That meant much of this work has been done by 
young and inexperienced lawyers, either in the traditional role of privately retained 
defence counsel or more likely as duty counsel hired per diem. Unlike the salaried 
duty counsel of Metro Toronto and Durham Region who quickly acquire the 
necessary skills and confidence for competent representation, per diem duty counsel 
receive no systematic training and may work without any assistance or supervision 
from senior counsel. Though bail court may well be a good venue for recently 
qualified lawyers to learn their trade, hone their skills, and develop confidence, 
over-reliance on such lawyers is unfair to them and unjust for accused persons. 

Since the Law Society of Upper Canada and the Ontario Government established a 
committee to review and restructure the Legal Aid Plan during the final weeks of 
our mandate, we have refrained from making specific recommendations based on the 
current system. Whatever changes are made, however, high-quality legal 
representation must be provided at bail. In light of our findings, failure to provide 
such services would be tantamount to colluding in perpetuating racial inequality in 
the criminal justice system. 



Imprisonment before Trial 175 

Endnotes 



I. 



8. 



9 



10. 



II. 



12 



13 



14. 



15. 



Law Reform Commission of Canada, Compelling Appearance, Interim Release and Pre-Trial 
Delention. Working Paper No. 57 (Ottawa: Supply and Services, 1988), p. 27. 

Martin L. Friedland, Detention Before Trial: A Study of Cases Tried in Toronto Magistrates 
Courts (Toronto: University of Toronto Press, 1965). 

Canadian Centre for Justice Statistics, Correctional Services in Canada: Highlights for 1993- 
94 (1995) 15(5) Juristat, Table I. 

Chief Justice Antonio Lamer in R. v. Pearson (1993) 77 C.C.C. (3d) 124 at 135-6, citing 
with approval D. Kiselbach, "Pre-Trial Criminal Procedure: Preventive Detention and the 
Presumption of Innocence" (1988-89) 31 C.L.Q. 168. 

R. V. Anderson [1992] O.J. No.831 at 23. 

A.K. Bottomley, "Prison Before Trial," Occasional Papers on Social Administration No. 39 
(London; Bell, 1970); C. Davies, "Pre-Trial Imprisonment: A Liverpool Study," British 
Journal of Criminology 11 (1971), p. 32; United Kingdom, Home Office, Criminal Statistics, 
England and Wales 1989 Cm. 1322 (London: HMSO, 1990); Friedland, Detention Before 
Trial (note 2); Anthony Doob and Pamela Koza, "The Relationship of Pre-Trial Custody to 
the Outcome of the Trial" (1975) 17 C.L.Q. 391; John Hagan and C.P. Morden, "The Police 
Decision to Detain: a Study of Legal Labelling and Police Deviance," in Organisational 
Police Deviance: Its Structure and Control, ed. Clifford Shearing (Toronto: Butterworths, 
1981); Anthony Doob and A. Cavoukian, "The Effect of the Revoking of Bail: R. v. 
Demeter" (1977) 19 C.L.Q. 196-202. 

Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, report 
of the committee, chair, Roger Ouimet (Ottawa: Queen's Printer, 1969), pp. 101-2. 

Ibid., p. 101. 

Ibid., p. 99. 

Law Reform Commission of Canada, Compelling Appearance (note 1), p. 28. 

R. V. Powers (1972) 9 C.C.C. (2d) 533 (Ont. H.C.) at 541. 

Law Reform Commission of Canada, Compelling Appearance (note I), pp. 30-34. 

Don Stuart, Annotation: R. v. Tully (1983) 35 C.R. (3d) 308. 

Ontario Ministry of the Solicitor General and Correctional Services, Policing Standards 
Division, Policing Standards Manual, March 31, 1992, as amended (manuscript on file). Nor 
is such guidance found in any other documentation provided by the Ministry, such as "All 
Chiefs memos" which are circulated periodically. 

Criminal Code ss. 499-500. 



176 EXAMINING PRACTICES 



16. 



S.C. 1994, C.44, S.40. 

R. V. Pearson, (1992) 77 C.C.C. (3d) 124, at 145. 

Ibid., p. 152. 

Ibid., p. 153-54. 

Canada, House of Commons, Bill C-7, "An Act Respecting the Control of Certain Drugs, 
Their Precursors and Other Substances and to Amend Certain Other Acts and Repeal the 
Narcotic Control Act in Consequence Thereof," first reading Feb. 2, 1994. 

Ontario Ministry of the Attorney General, Crown Policy Manual, January, 1994, Policy B-1: 
"Bail Hearings." 

^^ Friedland, Detention Before Trial (note 2), p. 191. 



17. 



19. 



20. 



21. 



23. 



24. 



25. 



26 



28. 



29. 



30. 



31. 



32. 



See United Kingdom, Home Office Working Party, Bail Procedures in Magistrates Courts 
(London: HMSO, 1974), paras. 10-17. 

M. Gottfredson and D. Gottfredson, Decision Making in Criminal Justice (New York: 
Plenum Press, 1980), p. 120. A later study found no relationship between pre-tnal crime or 
failure to appear and the seriousness of the charge for which the accused had been originally 
arrested. J.S. Goldkamp and M. Gottfredson, "Guidelines for Bail and Pretrial Release in 
Three Urban Courts," vol. 1, unpublished report (Philadelphia: Temple University, 
Department of Criminal Justice, 1988) cited in Barklay Resources, "Awaiting Trial: Accused 
Persons Remanded to Custody," August 1995 (unpublished). 

Barklay Resources, "Awaiting Trial" (note 24), pp. 35-6. The median bail required fi-om the 
accused or prospective sureties was $4,000. 



R. V. Cichanski (1976) 25 C.C.C. (2d) 84. 
"• Criminal Code, s. 145(3). 

Criminal Code, ss.524(l) and 524(2). 
Criminal Code, s.524(4). 



John M. Gandy, "Judicial Interim Release (Bail) Hearings that Resulted in Detention Prior to 
Trial of Youths Charged Under the Young Offenders Act in Three Ontario Cities" (Toronto: 
The Policy Research Centre on Children, Youth and Families, 1992). 

Criminal Code, s. 523(2)(c). See also the Crown Policy Manual (note 21), which says crown 
attorneys are to consider bail modifications in the provincial division courts "in the absence 
of unusual circumstances" (page B- 1 ). 

Law Reform Commission of Canada, "Bail," Research Report #2.18, unpublished, 
summarized in Brian Etherington, "Working Document - Review of Multiculturalism and 
Justice Issues: A Framework for Addressing Reform" (Ottawa: Department of Justice, 1994). 



33. 



34 



35. 



35. 



37. 



39 



Imprisonment before Trial 177 



Salvation Army. Governing Council of Canada, "Ottawa Bail Program Description," 
unpublished (manuscript on file). 

David Scott and Neil Webster, "An Evaluation of the Toronto Bail Program - Part II - 
Judges' and Justices of the Peaces' Perceptions," November 1993, unpublished (on file). 

Paul Fleury, Acting Director, Operational Support and Co-ordination Branch, Ontario 
Ministry of the Solicitor General and Correctional Services, memorandum (on file), Sept. 22, 
1994. 

Neil Webster, Director, Toronto Bail Program, letter to Commissioner Margaret Gittens (on 
file), June 16, 1994. 

Ontario Ministry of Correctional Services, Youth and Community Corrections Branch, 
"Program Review: The Bail Verification and Supervision Program," March, 1992 
(manuscript on file). 

Ibid,, p.lO. 

Ibid. A previous evaluation conducted by the Ministry's Planning and Evaluation Unit in 
1987 similarly concluded that "the bail programs have diverted a significant number of 
individuals from a growing number of remanded admissions." 



Chapter 6 

Charge Management 



[SJound policy at the earliest stages has the greatest 
potential to enhance the reputation of the administration 
of justice among the broadest group of participants. 
Conversely, any shortcomings in the initial stages of the 
process will adversely affect more participants than 
anywhere else in the system .... [WJhile the administration 
of justice must be sound at every stage, nowhere is 
soundness more important than at the outset. 

- The Martin Report^ 

This chapter looks at the processing of criminal charges outside trial courts. It deals 
with decisions about laying and reviewing charges, diversion of charges away from 
court proceedings, procedures for resolving issues before charges are tried, including 
plea negotiations, and criminal justice services for accused persons, victims and 
witnesses. These procedures and services together make up a complex administrative 
system, which we term "charge management." 

The Commission's Terms of Reference direct us to examine the exercise of 
discretion at important decision-making points in the criminal justice system for 
evidence of adverse impact on racialized people, and to consider access to justice 
services by racialized people. Discretion is the essence of charge management, 
starting with police deciding whether an incident warrants a response from the 
criminal justice system and crown attorneys deciding whether to prosecute and how 
to proceed. Later, informal and formal discussions between crown attorneys and 
defence lawyers - sometimes also involving judges - may resolve issues without a 
contested trial. 

The discretionary powers exercised during charge management are, as the Martin 
Committee notes, "of superordinate importance" to the operation of the criminal 
system as a whole and to public confidence in its integrity. This is because charge 
management determines whether incidents of harmful or other socially undesirable 
behaviour are selected for processing by the criminal justice system rather than other 
social institutions. Because this system is "costly, blunt and potentially oppressive,"^ 



179 



1 80 EXAMINING PRACTICES 

actual or perceived unfairness in its selection procedures may profoundly affect 
public confidence. 

Also, intervention by the criminal justice system has a broad impact. Every 
individual directly affected by criminal charges - victims and other witnesses, as 
well as accused persons - must deal with charge management procedures during the 
early stages of the process. The number of individuals who experience trial 
proceedings is much smaller, and only some accused are exposed to punishment 
systems such as probation or prison. Since more people are affected by the exercise 
of discretion early in the justice process, any shortcomings in charge management 
may contribute to widespread perceptions of injustice (as well as produce unjust 
results).'^ 

The Commission's preliminary consultations revealed two main concerns about 
systemic racism in charge management practices. The first is failure to exercise 
discretion in favour of racialized people as frequently or as significantly as for white 
people. During the early stages of criminal proceedings, police, crown attorney and 
defence counsel decisions are often made rapidly, based on limited information and 
hidden from public scrutiny. Racialized assumptions and stereotypes may influence 
decisions in various ways, some quite subtle, and decision-makers engaged in their 
daily routines may not recognize such bias unless they are constantly alert to the 
risk. 

The second problem is that any failure of criminal justice officials to communicate 
adequately with racialized people involved in criminal management procedures may 
create or exacerbate perceptions of exclusion from justice. Victims of crime and 
accused persons in particular may feel bewildered, overwhelmed and even 
dehumanized by charge management proceedings. Strikingly similar experiences of 
charge management were reported to the Commission on behalf of victims and 
accused persons. These reports illustrated the view of a general division judge who, 
on a Commission survey, commented that the criminal justice system - 

"is obviously set up to try and deal expeditiously with the caseload. Little or no concern 
is given to fundamental basic rights which citizens have. Everything is done to 'please' 
the system." 

The Commission received numerous complaints about police officers, lawyers or 
judges making important decisions without fully communicating what is happening 
to persons most affected by the decisions. The point, asserted repeatedly, is that 
even if charges are managed properly, a failure to explain the process or the reasons 
for decisions shows a lack of respect. When an affected person is from a racialized 
community and the justice official involved is white, this lack of respect may well 
be experienced as racist even if discrimination is not intended. That experience may 
in turn provoke suspicion about why information is being withheld. In short, lack of 
communication may be experienced as disrespectful and as indicating racialization. 



Charge Management 181 

In 1991, the Attorney General struck the Advisory Committee on Charge Screening, 
Disclosure and Resolution Discussions, known as the Martin Committee. This 
Committee reviewed procedures at the early stages of the criminal justice process, 
and in 1993 proposed reforms to improve fairness, openness, integrity and 
accountability in the charge management system. Since many of these reforms were 
implemented during the Commission's mandate, we organized our research to 
complement rather than duplicate the Martin Committee's work. Specifically, while 
the Martin Report emphasized procedural changes, we concentrated on mechanisms 
for eliminating discriminatory treatment of members of black and other racialized 
communities. 

We discuss, first, how the criminal justice system selects cases and determines how 
to proceed. We outline key decisions that police officers or crown attorneys make 
when laying, screening and diverting charges, and discuss their impact on accused 
persons from black and other racialized communities. We then examine whether the 
justice system provides sufficient access to legal services for black and other 
racialized accused persons. 

Next we discuss the resolution process by which crown and defence counsel, 
sometimes with the assistance of a judge, may agree about the information and 
submissions to be presented in court if an accused person pleads guilty. This 
process, commonly known as plea bargaining, has a history of controversy, but its 
role in Ontario charge management is well established. Many accused persons, and 
sometimes victims, apparently prefer the speed and certainty of resolution 
agreements to a contested trial. However, among members of black and other 
racialized communities we found considerable mistrust of the procedure and of 
lawyers, especially white lawyers, who urge guilty pleas. 

The chapter concludes with problems that victims - especially black and other 
racialized women victimized by male partners - may experience in the charge 
management system. We document concerns about the exercise of discretion and 
access to support services for those who participate in prosecution of the abuser. 

Selecting and processing charges 

There are two stages in initiating criminal proceedings. The first is the decision to 
lay charges, which is usually made by the police (or sometimes by private citizens). 
This decision requires formal approval from a justice of the peace. At the second 
stage, a crown attorney reviews the charges to determine which should proceed. 

Crown attorneys may have further administrative choices that affect the number and 
nature of prosecutions. One important choice is the option of placing suitable 
accused persons into a diversion program rather than proceeding to trial. Another 
arises when an alleged offence offers the state the option of proceeding by 
indictment or summarily. 



182 EXAMINING PRACTICES 

Police discretion to lay charges 

In law and in practice, the police generally have considerable discretion over 
whether to lay charges and which ones to lay. Ontario law maintains the principle of 
"constabulary independence,'"* which means that police officers may decide to lay 
charges based on their perceptions of an allegedly criminal incident. Though officers 
are free to consider the wishes of victims or opinions of crown attorneys, the police 
retain the ultimate choice. 

The legal test for laying a charge is that an officer or private citizen must have 
"reasonable and probable grounds" (evidence) to believe that the suspect has 
committed an offence. This standard is intended to prevent incidents being selected 
for criminal justice processing when the facts fail to indicate a reasonable basis for 
believing that the suspect has broken the law. However, police officers are not 
normally obliged to lay charges simply because of an honest belief that "reasonable 
and probable grounds" exist. Once this threshold is met, police officers still have 
discretion over whether to lay charges and, if so, which charge(s). 

Even a simple situation may permit a choice among several charges of varying 
severity (as measured by the maximum penalty upon conviction). For example, a 
group of 18-year-old youths who are caught driving around in a car they have 
broken into could be charged with the following offences: theft over $5,000,' 
possession of stolen property over $5,000,* mischief to property over $5,000,^ taking 
a motor vehicle without consent,* or conspiring to commit any of these offences. 
The maximum penalties for these offences range from six months to 10 years of 
imprisonment. Of course, instead of laying a charge, an officer may decide to escort 
the youths to their homes, inform their parents and deliver a stem lecture. 

In some circumstances, police officers no longer officially exercise discretion over 
whether to lay charges once they believe reasonable and probable grounds exist. For 
example, provincial and local policies now require Ontario police officers to lay 
charges when assaults occur within family settings.' Such policies significantly 
curtail police discretion in the charging system, but they have not eliminated it. 
Even in these instances police officers must determine whether reasonable and 
probable grounds exist. 

Findings about police charging discretion 

The Commission's surveys and consultations revealed that many Ontarians do not 
believe that police always exercise their charging discretion fairly. For example, our 
public opinion survey of black, white and Chinese residents of Metro Toronto asked 
respondents if they think a black person who punches a white person and a white 
person who punches a black person are equally likely to be charged.* Almost one in 
two (48%) black, more than one in four (29%) Chinese and one in five (21%) white 



The methodology of this study is summarized in Chapter 2 and described in more detail in our Technical Volume. 
See Appendix B. 



Charge Management 1 83 



residents think the black person is more Hkely to be charged. Ahnost no one 
beheved that the white person is more likely to be charged." 

Numerous complaints about police bias in charging were made during our public 
consultations. It was alleged that police officers are quick to charge racialized 
persons while they would not charge white persons in similar circumstances, and 
that charges against racialized persons tend to be more severe or more numerous 
than warranted. We also received several reports of incidents that were provoked or 
exacerbated by harsh police treatment and that resulted in charges against a 
racialized person. 

Two examples recorded by Commission staff illustrate the problems. In both cases 
the accused person was eventually acquitted, but first each had to endure 
prosecution and trial on charges that were understandably experienced as abusive. 

• N, a Chinese nurse, was driving from work with a co-worker on their way for a 
dinner break in Chinatown, when they were pulled over by a cruiser with one 
male and one female police officer. The officers took N's licence and ownership 
information back to their car for checking. They were taking a long time and 
giggling, and N was in a hurry, because she still had to eat before returning to 
work. N approached the police car to explain and ask for her licence back. She 
was thrown into the back of the cruiser by the police woman, suffering head and 
other injuries, and was sworn at when she tried to ask questions and stand up for 
her rights. The officers gave N a ticket for an expired licence sticker, told her 
she would be charged with disturbing the peace and assault, and took her to the 
station, where she was kept for several hours. With the support of the Chinese- 
Canadian community and women's groups, N was able to retain a lawyer and 
was acquitted on all charges. She later filed a complaint with the Public 
Complaints Commission, which was upheld by a board of inquiry. 

• On February 19, 1993, P, an 18-year-old black male, was stopped by the police. 
He and his younger brother were coming from their church's youth basketball 
game and were standing at Birchmount and Finch [a major intersection in 
Metropolitan Toronto] when a police car drove by. By way of a dare he raised 
his left arm, gave the peace sign and shouted "peace out, copper." The car made 
a U-turn and stopped in front of them. Two officers came out of the car; one 
white, the other Asian. The white officer approached him asked what he'd said. 
P explained to the officer, who then said that P had picked the wrong officer to 
mess with. The officer then asked him for ID [identification]. P asked if he was 
being arrested, and his brother pointed out that P didn't have to show any ID 
unless he was being arrested, so P agreed with his brother not to show any ID. 
The next thing he knew was that he was being thrown up against the police car. 
There was a struggle, and the officer put handcuffs on him while P was yelling 
and screaming, "What's going on?" P was taken to the station, where he was 



No black residents and only 1 percent of white and Chinese residents report this view. 



184 EXAMINING PRACTICES 

charged with resisting arrest, assault, mischief and disturbing the peace. At trial, 
P was acquitted of all charges. The trial judge concluded that "[t]he evidence of 
the Crown's case through the officers suffered significantly from inconsistencies, 
which impacted on credibility ... the overall evidence of the police left me with a 
distinct impression that they were overreaching, and filling in the lacunae of 
their case."'" 

The Commission received additional accounts of unfairness in police charging 
practices from some who work in the criminal justice system. A written submission 
from the Ontario Board of Parole (central region), for example, raised concerns 
about drug enforcement practices: 

"We hear about people being 'bugged' by undercover officers until they agree to find 
drugs, and others who claim to have been subjected to illegal searches which produce 
drugs of suspicious origin. In other words, while the [Parole Board] sees those who 
actually do traffick drugs, we also meet individuals who are induced to traffick and 
those who don't traffick, but may be charged anyway. There is some suspicion that drug- 
related cases are easier to prove in court and [charges] are more likely to be laid against 
[young black males], which both increases the likelihood of a conviction and helps to 
perpetuate the stereotype of black drug users/dealers." 

Two defence counsel who responded to the Commission's survey stated that - 

"Trumped-up multiple charges by the police ... are most common when dealing with 
street-level addicts who traffick in narcotics, especially crack. In my experience 75-80% 
of these clients come from a minority background." 

"In many cases I have had, I am sure the police would not have charged the person if 
the person was white. It seems to me the police are more willing to resolve disputes 
[that] could merit charges of assault, theft or 'threatening' without laying charges if the 
person is white." 

These accounts of explicit and more subtle forms of racial bias in charging practices 
are depressingly similar to those of previous reports documenting the experiences of 
black and other racialized Ontarians. Sometimes, however, such accounts have been 
discredited as mere anecdotes, unsupported by systematic evidence of differential 
outcomes. Resource constraints prevented the Commission from conducting a 
comprehensive study of the extent to which the police exercise charging discretion 
differently in response to similar behaviour by white and racialized people. But 
findings from related Commission research are consistent with perceptions of 
differential treatment. 

For example - 

• As documented in Chapter 4, recent prison admissions data indicate that black 
persons are most over-represented, relative to white persons, among untried 
prisoners whose most serious charge is drug trafficking/importing, drug 
possession, obstructing justice or a weapons offence. These charges generally 



Charge Management 185 

result from police initiative in seeking out criminal offences rather than from a 
complaint by a victim or another person. 

• A study of 248 randomly selected Youth Bureau files, drawn from completed 
cases at two Metropolitan Toronto police divisions, indicates that black youths 
are over-represented among young persons whose charges are initiated solely by 
the police rather than in response to a complaint. The data show that 41% of the 
sample as a whole, but 52% of the youths whose charges are solely initiated by 
the police, are black. By contrast 40% of the sample as a whole, but only 29%) 
of youths whose charges are solely initiated by the police, are white." 

An observation study of 217 cases in Metro Toronto courts found that, 
proportionate to their number in court, black defendants are significantly more 
likely than white or other racial minority accused to face at least one drug or 
weapons charge.' The study also shows that these types of charges are 
significantly more likely to have arisen from proactive than reactive policing. 
According to these data 77% of the cases resulting in at least one drug or 
weapons charge, but only 37% of other cases, stem from proactive police 
activity. Black accused in this study are no more likely than white or other racial 
minority accused to have been charged with other offences as a result of 
proactive policing. 

These findings are only fragments of a larger picture. However, they tend to support 
oft-repeated complaints that the police scrutinize black Ontarians more closely than 
others and differentially select them for processing by the criminal justice system. 
Clearly, any such differential treatment is unacceptable. 

As we document in Chapter 10, many Ontario police services appear to be seriously 
attempting to improve relationships with black and other racialized communities, 
largely by implementing community policing practices. Unless a commitment to 
racial equality is entrenched in charging practices, however, such efforts may do 
little to alleviate existing suspicion. Consequently, measures to secure and 
demonstrate publicly such a commitment should be a high priority in new policing 
systems. 

One response to our findings would be to reduce police discretion over charging 
decisions. This could be achieved by, for example, decriminalizing or reducing the 
enforcement priority given to offences such as possession of a narcotic, developing 
and enforcing specific guidelines to govern police action, and increasing the powers 
of justices of the peace to stop charges from proceeding further ("refuse to issue 
process"). Such initiatives may have the important effect of clarifying what the 
criminal justice system expects of the police and of formalizing the procedures 
governing the selection of cases for criminal proceedings. The risk would remain. 



The study observed 217 court processes in various courts that serve parts of Metro with large 
black or other racialized communities. Details of this study are in the Commission's 
Technical Volume. See Appendix B. 



1 86 EXAMINING PRACTICES 

however, that individual officers might ignore or manipulate procedural changes to 
achieve their charging objectives. 

Another approach would be to maintain police discretion but provide officers with 
alternatives to criminal charges, such as formal procedures for diverting persons 
from criminal proceedings. While such procedures are common in other 
jurisdictions, they do not exist for police in Ontario. Here as elsewhere, police 
officers may choose not to proceed with charges, but no system guides the exercise 
of the discretion to avoid charges or encourages the use of this discretion. 

Police diversion or "cautioning" systems in other jurisdictions vary considerably. In 
Britain, for example, government policy promotes cautioning as an alternative to 
laying charges, especially with young persons.'' Simple criteria have been 
established to determine whether an individual qualifies for a caution, and cautions 
are officially recorded. However, officers are not required to caution everyone who 
fits the criteria," and disparity among police jurisdictions suggests substantial 
variation in local police practice. 

Under the British system, issuing and recording a caution is the only official 
response to an offence diverted by the police. A more proactive version of police 
cautioning is the ''enhanced cautioning" or "family conferencing" model adopted by 
a police service in New South Wales, Australia, which has attracted considerable 
interest among some police officers in Metro Toronto and other Ontario 
jurisdictions. 

The family conference "is designed as a ritual in which victims, offenders, and those 
closest to them can deal with their shame and anger ... [and] then remove the labels 
of victim and offender."'^ This form of cautioning is developed from a traditional 
response of New Zealand's Maori people to unacceptable behaviour, in which the 
extended network of a young person's family and friends share responsibility for the 
person's misbehaviour and involve its victims in resolving the problem. As 
administered in New South Wales, the police convene a meeting of the young 
person and his or her supporters that also includes, if possible, the victim with his or 
her supporters. Everyone present at the meeting, which is facilitated by a trained and 
experienced officer, is given an opportunity to say how the offending behaviour 
affected them, and the young person is asked about the incident. Towards the end of 
the meeting the group develops a plan through which the young person may redress 
the harm caused. 

Police proponents of the model describe it as a form of "reintegrative shaming"''' 
that reduces both recidivism and the resources devoted to costly criminal justice 



The most significant criteria are that the police have sufficient evidence of the person's guilt to "give a realistic 
prospect of conviction," and that the offender admits the offence and gives informed consent to being cautioned 
(Home Office Circular, 59/1990 Annex B). In the 1994 revision of the guidelines, the Home Office for the first time 
prohibited police cautioning for very serious indictable offences and limited repeat cautions to the most minor 
offences (Home Office Circular, 18/1994). 



Charge Management 187 



processing. Enhanced cautioning draws on the sense of shame generated by social 
disapproval or disgrace because - 

"... people are deterred less by the threat of official punishment than by the threat of 
public disgrace. The threat of a loss of status and affection is the really significant threat. 
And this is not a threat that can be made by state officials. It can only be made by those 
who have a significant personal relationship with the person whose behaviour is in 
question."" 

The purpose of enhanced cautioning is not to humiliate offenders but to reintegrate 
them into the community by developing their awareness of the harmful 
consequences of their behaviour and by reinforcing collective accountability for such 
behaviour. Drawing on their experiences, police trainers and advocates of family 
conferencing state: 

An effective Family Conference ... threatens the young offender(s) with social 
disapproval. But in making the distinction between unacceptable behaviour and the 
potentially good young person or people responsible for that behaviour, the Conference 
offers the possibility of social reintegration .... A successful conference ... makes [young 
offenders] aware of the consequences of their behaviour .... Self-control is reinforced by 
supportive community control to minimize the risk of further offending. This 
strengthening of community control and collective accountability is preferable to a 
system that relies on increased state control to deter offending behaviour. "' 

Commissioners met with the police officer responsible for the enhanced cautioning 
system in New South Wales and were persuaded that this model could address many 
of the concerns of black and other racialized Ontarians about police charging 
discretion, especially in dealings with youths. Even a simple formal cautioning 
scheme, such as Britain's, which reflects the principle of restraint in the use of 
criminal proceedings, could significantly reduce community anxieties about police 
charges. To be effective, however, any such scheme in Ontario would have to 
incorporate safeguards against practices that produce or are perceived to produce 
racial inequality. 

This problem has been raised with respect to the British cautioning scheme. Recent 
research, based on the files of seven police jurisdictions, suggests that "Afro- 
Caribbean" (black) youths are considerably more likely than white youths to be 
charged with criminal offences by the police rather than cautioned." Neither the 
type of offence committed nor previous criminal histories explained the significant 
difference in prosecution rates. The study identified only one possible non-racialized 
explanation for some of the discrepancy in one of the jurisdictions: Afro-Caribbean 
youths are less likely to admit the offence, and so are disqualified from the 
cautioning scheme. Any cautioning regime introduced in Ontario would need to 
protect against the risk that racialized judgments might influence police selection 
decisions. 

Equally important is the need to guard against "net-widening." A standard objection 
to creating new options within the criminal justice system is that the powers might 



1 88 EXAMINING PRACTICES 

be used not to reduce the number of persons formally charged, but to draw more 
people into the system. Instead of cautioning persons who would formerly have been 
charged, for example, the police might end up cautioning people whom they would 
previously have informally warned.'* 

The risk of net-widening may be reduced, if not eliminated, by requiring the police 
to issue cautions rather than lay charges unless criminal proceedings are specifically 
justified, by monitoring the impact of new police powers and by scrutinizing how 
they are used. Consistent with the principle of restraint in applying criminal law, 
Ontario should establish provincial guidelines for a police cautioning system. Police 
officers should be required to use their cautioning power in preference to charges 
unless they account for a departure from cautioning in writing. In formulating the 
cautioning guidelines, the Ministry of the Solicitor General and Correctional 
Services should avoid incorporating systemic biases. The use of the cautioning 
power and its relationship to police charging practices should be monitored for 
evidence of net-widening and racial bias. 

The Commission also proposes that Ontario police services establish an enhanced 
cautioning system. While the police should develop it in concert with interested 
community organizations and individuals, the Ministries of the Solicitor General and 
Correctional Services and Attorney General, should formulate guidelines for local 
schemes. Start-up and training costs for enhanced cautioning should be provided by 
the Ministry of the Solicitor General and Correctional Services. 

Drawing on the New South Wales model, enhanced cautioning systems should 
include "community accountability conferences." These conferences should involve 
the offender and family members and friends, and the victim (if he or she wishes to 
participate) together with family members or friends. While participation by the 
victim is important to community accountability conferences, if the victim is 
unwilling, a modified conference should nevertheless proceed. 

The police should convene the conference, and an officer trained in family 
conferencing techniques should facilitate it. Depending on local procedures, a 
trained community member may act as a joint facilitator. Interpretation should be 
available if needed by any participant in the conference. The enhanced cautioning 
system should be monitored for recidivism rates and satisfaction with the process, as 
well as for evidence of net-widening and racial or gender bias. 

6.1 The Commission recommends that - 

a) the Ministry of the Solicitor General and Correctional Services establish 
provincial guidelines for a formal police cautioning system. 

b) the guidelines require police officers to use the cautioning power instead of 
charges unless the need for charges is justified in writing. 

c) the use of the cautioning power and its relationship to charging practices be 
monitored for evidence of "net-widening" and racial bias. 



Charge Management 189 



6.2 The Commission recommends that - 

a) the Ministries of the Solicitor General and Correctional Services and the 
Attorney General develop general criteria for Ontario police services to 
establish enhanced cautioning systems that include community accountability 
conferences. 

b) Ontario police services, in concert with interested community organizations 
and individuals, establish enhanced cautioning systems that include community 
accountability conferences. 

c) the Ministry of the Solicitor General and Correctional Services provide start- 
up and training funds for enhanced cautioning systems. 

d) enhanced cautioning systems be monitored for recidivism rates and 
satisfaction with the process, and for evidence of net-widening and racial bias. 

Crown attorney discretion to review charges 

The second stage of the charge selection process involves crown attorneys reviewing 
or screening charges to determine if prosecution is viable. Crown attorneys have 
always had discretion, independent of the police, to decide if charges should 
proceed. In this role, they have long been responsible for safeguarding the public 
interest in a fair and accountable manner. 

Until recently, however, little was known about the formal principles used by crown 
attorneys in deciding whether to endorse, withdraw or modify charges laid by the 
police. With the implementation of the Martin Committee's recommendations on 
charge screening,' this exercise of discretion by Ontario crown attorneys is now 
subject to comprehensive and publicly available guidelines. '' While charges 
prosecuted by federal agents, such as those laid under the Narcotic Control Act, are 
not formally within the Ontario screening system, we understand that federal agents 
are generally directed to follow the charge screening criteria recommended in the 
Martin Report}^ 

The new Ontario screening system anticipates early scrutiny of all charges by a local 
crown attorney to determine whether to prosecute. Subsequently, charges that have 
been selected for prosecution are to be periodically reviewed to ensure that criminal 
proceedings continue to be viable. The review guidelines highlight three elements. 
First, crown attorneys must ensure that no "insuperable legal or jurisdictional" 
obstacles to successful prosecution exist. "Fatally flawed" prosecutions should be 
avoided because they expose accused persons and victims to needless stress and 
expense, and waste judicial and prosecutorial resources. 

Second, crown attorneys are to assess whether the available evidence indicates "a 
reasonable prospect" of conviction. This test involves a decision, based on the 
quality of the evidence - which would include the credibility of key witnesses - and 



The Commission's research indicates that some regions systematically screened charges before the new guidelines 
were developed. So far as the Commission could determine, all Ontario crown attorneys offices had implemented the 
new screening system by the end of 1994. 



190 EXAMINING PRACTICES 

its admissibility, togetiier with any defences known to tiie state. By maicing this test 
objective, the guidehnes seeic to limit the influence of the personal views of crown 
attorneys and to promote close and independent scrutiny of the evidence gathered by 
the police. Whatever crown attorneys think about an accused person, prosecutions 
should not be launched or continued if the evidence indicates no reasonable prospect 
of conviction.^' 

The third review element, which is addressed only after a crown attorney concludes 
that a "reasonable prospect of conviction" exists, requires explicit consideration of 
whether prosecution is in "the public interest." As the Martin Committee 
acknowledged, the "public interest in prosecution" is a broad standard that may 
require assessing a variety of factors. The starting point of the new screening 
system, however, is that the public interest generally favours prosecution whenever 
"a reasonable prospect of conviction" exists. This creates a presumption in favour of 
prosecuting accused persons once viable charges have been laid, even if the charge 
selected for prosecution differs from what the police originally chose. The 
presumption may be overcome if the public interest is likely to be better served by 
diverting the charge from a criminal prosecution. 

Depending on the charges that emerge from the screening process, crown attorneys 
may have discretion over the prosecution procedure. A large and growing number of 
criminal offences offer the state the option of proceeding by indictment or 
summarily. When the Crown proceeds by indictment, the maximum sentence 
available upon conviction is much higher. In practice, sentences imposed tend to be 
higher when the Crown proceeds by indictment. 

The choice of prosecution procedure also has implications for how a case is tried. 
All summary prosecutions under the Criminal Code and related federal legislation 
are dealt with by a judge of the provincial division of the Ontario Court of Justice. 
By contrast, if the crown attorney elects to proceed by indictment, the accused 
person may usually choose whether to be tried by a provincial division judge* or in 
the general division by a judge and jury or by a judge alone.^^ 

Findings about the review of charges 

The Commission found considerable public confusion about the role of crown 
attorneys in charge management, and radically varying perceptions about racial 
injustice in their exercise of discretion. Some participants in Commission 
consultations said they do not understand what crown attorneys do, while others 
clearly believed that crown attorneys are lawyers for the police. Among those who 
correctly identified crown attorneys as independent of the police, there was 
suspicion that in practice many crown attorneys are too close to the police. 



Section 553 of the Criminal Code assigns some charges exclusively to the provincial division, no matter how the 
state elects to proceed. 



Charge Management 191 



This opinion was also held by some defence and duty counsel. They suggested that 
the working relationship between crown attorneys and police officers may lead to 
failure to review charges adequately or to scrutinize fully the evidence on which 
racialized persons are charged. Consequently, exercise of discretion carries a 
significant risk of transmitting bias against black and other racialized persons into 
the next stage of the criminal justice process. 

Research into prosecutorial discretion suggests a problem in the extent to which 
crown attorneys rely on documentation prepared for them by the police." A study 
based on empirical research in an urban jurisdiction in Ontario concludes, for 
example, that police control so much of the paper flow that in practice prosecutorial 
discretion over charges has been quite limited.'^ A recent British study also 
identified police control over information as a significant obstacle to truly 
independent judgments by prosecutors. The authors show that the police can and do 
pre-determine how crown discretion will be used by deciding what information 
appears on file and how that information is presented. 

Examination of case files and discussions with officers indicate a broad awareness of the 
factors which militate for or against prosecution. However, for the police the relevance 
of these public interest factors is not in providing external criteria against which cases 
are to be judged. Rather, these public interest factors provide a resource upon which the 
officers preparing or reviewing cases can draw as a means of justifying the decision or 
recommendation made and of achieving the favoured outcome. The informal working 
rules of the police provide the reason for a particular decision, the formal guidelines 
provide the justification.^" 

Both crown and defence counsel, as well as community members, suggested that 
crown discretion may be subtly influenced by stereotypes associating racialized 
people with crimes. The next chapter documents ways in which crown attorneys, as 
well as judges and defence lawyers, expose themselves to this criticism by making 
irrelevant references to race in courtrooms. Less visible, but no less important, are 
unspoken assumptions that may influence prosecutorial discretion during charge 
selection. According to one defence counsel responding to the Commission's survey, 
for example - 

"Assumptions are made by police, crowns and judges that certain racial minorities are 
more likely to be guilty of certain categories of offences, and discretion is exercised or 
restricted accordingly." 

Others we consulted insisted that the exercise of crown discretion to review charges, 
though sometimes flawed and often uneven, does not reflect systemic racism. Many 
crown attorneys forcefully expressed this view, and defence counsel and judges also 
generally supported it. 



As shown in Chapter 5, some police characterizations of accused persons are extremely negative. 



1 92 EXAMINING PRACTICES 

Because of the extensive changes to screening procedures during the Commission's 
mandate, we did not attempt to compare results from this type of prosecutorial 
discretion for persons from white and racialized communities. One of our major 
studies however, permitted a limited analysis of crown discretion to select the 
prosecution procedure. The study (described in Chapter 5) compares various 
criminal justice outcomes for white and black males charged with the same five 
offence types during 1989/90 by the Metropolitan Toronto Police. While some of 
the offences included in the study are indictable only, others - sexual assault, 
"assault peace officer," bail violations and various drug charges - can proceed 
summarily or by indictment (hybrid offences). 

Comparison of the outcomes of crown elections shows small but statistically 
significant differences favouring white accused across the entire sample of these 
offences, and for those charged with assaulting a peace officer and the hybrid drug 
offences. In the entire sample of hybrid charges, 37% of charges laid against white 
accused, compared with 31% of charges laid against black accused, were dealt with 
summarily. In the "assault peace officer" sample, 29% of charges laid against white 
accused and 12% of those laid against black accused were dealt with summarily. In 
the hybrid drug charge sample, 65% of charges laid against white accused, and 46% 
of those laid against black accused were dealt with summarily. No statistically 
significant difference appears in the choice of prosecution procedure for tnose 
charged with sexual assault or bail violations. 

Of course, these findings are based on charge management practices in 1989/90, 
before implementation of the new Crown Policy Manual. Further, the samples are 
derived from a single jurisdiction and cover a limited number of offences, and 
details of the incidents that led to the charges are unknown. It is nevertheless 
striking that racial differences appear for two highly discretionary charges that are 
usually initiated by the police and have been strongly linked to racialized 
stereotypes about the supposed criminality of black people. 

These findings highlight the need for vigilance by Ontario crown attorneys. While 
all would undoubtedly agree that "racism, sexism, and other forms of discrimination 
have no place in the administration of criminal justice,"^' stereotypes and implicit 
assumptions may still influence the routine exercise of discretion in subtle ways. 
Heavy reliance on information presented by police, for example, exposes crown 
attorneys to the risk that their decisions may inadvertently incorporate transmitted 
bias. 

Another concern is the large caseloads of many crown attorneys, which promote 
rapid decision-making that is vulnerable to the influence of stereotypes such as 
"unsettled" lifestyles, "notorious" residential areas, and "cultural propensities to 
crime." Such influences may result in a crown attorney exercising discretion against 
those who are perceived to fit the stereotypical description. 



Charge Management 193 

Crown attorneys should be alerted to specific ways of avoiding the influence of 
racialization on the exercise of prosecutorial discretion. The present Crown Policy 
Manual provides only general guidance through its introductory statement. It asserts 
that in exercising a discretionary power, crown attorneys "need to be aware of its 
context so that discriminator)' stereotypes do not influence ... decision-making." 
Crown attorneys are directed to be aware of systemic discrimination, which is 
defined by reference to a leading case in the Supreme Court of Canada on "adverse 
discrimination" and to the 1993 Canadian Bar Association's Report on Gender 
Equalitv in the Legal Profession (the Wilson Report). They are also reminded that 
as key participants in the criminal justice system, crown attorneys "can play an 
important leadership role in assisting to recognize and eradicate" various forms of 
discrimination."^ 

These principles are intended to govern all the individual policies and procedures 
contained in the manual. In practice, however, busy crown attorneys may find it 
difficult to identify subtle biases or examples of systemic discrimination in the day- 
to-day exercise of their own charging discretion or that of the police. Many people 
in Ontario, however, have considerable experience with and expertise in helping 
others to apply anti-discrimination principles to institutional policies and practices. 
The Commission urges that these skills be utilized in the ongoing revision of the 
Crown Policy Manual. 

6.3 The Commission recommends that the Ministry of the Attorney General 
establish a committee that includes crown attorneys and other Ministry 
officials, defence counsel, and representatives from racialized communities to 
advise on revisions to the Crown Policy Manual. 

Discretion to avoid court proceedings 

In some circumstances crown attorneys have discretion to dispose of charges 
without a trial that they might otherwise prosecute. Offenders who avoid prosecution 
in this way are required to perform acts of contrition or redress.' Once the 
conditions are fulfilled, the crown attorney normally withdraws or stays the charges 
and the person avoids a criminal conviction. 

The most extensive diversion program in Ontario, the Alternative Measures 
Program, was established under the Young Offenders Act for youths aged 12 to 17. 
Another important program serves adult Aboriginal persons charged with various 
offences.-^ Some Ontario jurisdictions maintain diversion programs for adult 
offenders of any heritage who are charged with a small number of minor offences. 
Legislation recently passed by the federal government formally authorizes the 



Within the informal programs for adults, the act of contrition is of\en a charitable contribution of a fixed amount. 
The formal programs have more options. They may, for example, require the diverted person to write a letter of 
apology, pay compensation or make restitution, or perlbrm community service. Some progrjuns also permit crown 
attorneys to seek referrals to a social or mental health agency, or require a diverted person to attend a counselling 
program. 



1 94 EXAMINING PRACTICES 

provinces to introduce equivalent programs for adults as for youths,^* and a more 
systematic diversion program for adults charged with a range of offences is planned 
for the spring of 1 996. 

The Alternative Measures Program establishes guidelines for the exercise of crown 
discretion in diverting young persons from criminal prosecution. Diversion is 
restricted to those who admit responsibility for the incident that led to the charge, 
and certain offences are excluded. For example, young persons charged with 
offences such as sexual assaults, serious non-sexual assaults, drug and firearms 
offences are ineligible for the program. Conversely, for some types of charges, 
diversion may be presumed. For example, youths charged with minor property 
offences are eligible for diversion if they accept responsibility for the offence and 
freely consent to participate. 

Within such guidelines, crown attorneys are responsible for approving admission to 
diversion programs and determining whether diverted persons have met the 
conditions. Depending on the program and the offence, these decisions may be 
straightforward or may require complex judgments. Diversion of an adult accused of 
shoplifting, for example, requires a crown attorney to do little more than ascertain 
that the person admits the offence and is willing to enter the program. By contrast, 
decisions regarding youths charged with offences that are neither excluded from 
Alternative Measures nor presumptively diverted should take account of the youth's 
needs and circumstances, any prior offences, the community interest and the 
victim's wishes. Crown attorneys may also consider "other behavioural patterns" of 
the young person, including his or her attitudes to authority, school, friends, 
acquaintances and family. 

Once a crown attorney has approved a young person for the Alternative Measures 
Program, discretion is temporarily passed to a community-based agency involved in 
the program. Such agencies supervise persons referred to them, much like probation 
offices do for convicted persons. Their particular task is to formulate suitable 
measures for their clients, which may include counselling or therapy, and acts of 
contrition or redress, and to monitor performance of the stipulated measures.' Only 
if the young person and the agency agree does the young person enter the program. 

A supervising agency is obligated to notify the crown attorneys' office whether the 
youth has completed the measures satisfactorily. Then the crown attorney must 
decide whether or not to proceed with the charges against the youth. If the youth 
has co-operated with the agency and fully completed the stipulated program, the 



Among the choices available to the probation officer are requirements that the young person apologize to the victim, 
orally or in writing, compensate, make restitution or perform personal service for the victim, contribute a specific 
sum to charity, participate in counselling or peer mediation, or perform community service. 



Charge Management 195 

decision is straightforward.' The decision is more difficult when the agency reports 
partial or non-performance, especially if the young person maintains that the 
measures required were overly burdensome or otherwise unfair. 

The Commission found no evidence that crown attorneys are perceived to select 
youths for Alternative Measures in a racially biased manner. However, inadequate 
access to Alternative Measures and low participation rates for racialized youths were 
raised frequently. Some duty counsel and defence counsel who responded to the 
Commission's survey maintained that these problems reflect arbitrary guidelines or 
unwillingness by crown attorneys to divert charges. Others blamed the police for 
failing to tell young people of the program and how to apply, or to use opportunities 
to recommend youths for Alternative Measures. Many lawyers criticized the limited 
range of charges qualifying for Alternative Measures before the 1995 amendments 
to provincial policy that established the categories of charges outlined above. 

The Commission could not assess the impact of these amendments because they 
came into effect late in our mandate. Our review of existing policies, however, 
raises an important systemic issue: the exclusion of all drug charges from 
Alternative Measures. The massive over-representation of black people among 
persons imprisoned for drug charges (documented in Chapter 4) suggests that this 
exclusion adversely affects black youths to a significant extent. 

Primary responsibility for this problem lies with the federal government - whose 
agents prosecute drug charges in Ontario - which does not have a systematic youth 
diversion program. By contrast, in some provinces where drug charges are 
prosecuted by provincial crown attorneys (Newfoundland, Quebec and Alberta), 
youths charged with drug possession may qualify for diversion. Diversion for drug 
offences should be included in the provincial Alternative Measures program. Ontario 
should attempt to establish a protocol simitar to that between the federal Department 
of Justice and the Aboriginal Legal Services of Toronto.-'^ This should permit 
diversion of young persons charged with a range of drug offences away from 
criminal proceedings and into the Alternative Measures Program. 

6.4 The Commission recommends that the Ministry of the Attorney General 
establish a protocol with the federal Department of Justice to allow young 
persons charged with drug offences to be diverted from the criminal process 
and into the Alternative Measures Program. 

Accused persons' access to legal services 

Access to legal services for accused persons is among the most pressing issues for 
the Ontario criminal justice system. While those with adequate financial means may 
purchase any legal services they want, many people depend on the Ontario Legal 



These measures should be completed within three months of the young person's acceptance into the program, and 
the crown attorney then has nine months to decide whether to stay the charge(s). 



196 EXAMINING PRACTICES 

Aid Plan to fund some or all of the legal services they need. Late in the 
Commission's mandate, a crisis in legal aid funding erupted publicly. Drastic 
changes in the system have been proposed, most of which would reduce access to 
traditional legal services, particularly representation in court. 

Even before the crisis, however, the Commission found serious concerns among 
racialized Ontarians about legal aid services. Virtually every community group that 
made submissions documented problems with access to legal aid. They 
recommended expansion of services and measures to ensure that all Ontarians know 
about the legal aid system and understand their rights to apply for assistance. Lack 
of information in their languages about legal aid is a particular concern among 
linguistic minority communities. Community organizations also expressed 
disappointment that the Ontario Legal Aid Plan does not use their organizations to 
distribute materials about the plan and its services more widely. 

Broad questions about the funding, control or future of publicly funded legal 
services are outside the Commission's mandate. Consistent with the Government's 
directive to address systemic problems, however, we recommend enhancing access 
to legal services that appear to be most needed by racialized accused persons. 
However the current crisis is eventually resolved, black and other racialized persons 
should face no greater barriers than other Ontarians in obtaining legal services from 
the criminal justice system. 

Accused persons may need three types of legal services. The first is emergency 
advice to arrested or detained persons during police interrogation and processing. 
The second service, which may be required once charges are laid, is basic, 
comprehensible and timely advice about the system's procedures and what to expect 
at each stage of the process. The third service is legal representation during court 
proceedings and in negotiations about resolving issues outside the courtroom. 
Accused who hire a lawyer privately may obtain all three services from that lawyer. 
Within the publicly funded system, access to each service is a significant issue. 

y4ccess to emergency legal services 

To obtain emergency legal services, persons held in police custody must know their 
rights and be able to exercise them effectively. The Canadian Charter of Rights and 
Freedoms gives arrested persons rights to speak with a lawyer and to be informed of 
this right. ^^ In Ontario, individuals needing such advice who do not have their own 
lawyer may use a 24-hour toll-free telephone service, which is staffed by lawyers 
acting as duty counsel. 

To advise arrested persons of their rights to emergency legal services, the Ministry 
of the Solicitor General and Correctional Services has provided police officers with 
a form of wording - a "caution" - to be read to all arrested persons.^' Information, 
however, does not necessarily produce understanding, especially when the officer is 
unable to communicate in the language used by the arrested person. Thus in a 1987 
decision, the Ontario Court of Appeal held that the right to speak with a lawyer was 



Charge Management 197 

infringed when the caution was read to the accused in English, but the officer knew 
that the accused was French-speaking. '■ 

Police services in urban Ontario draw on a variety of interpreters, including 
multilingual police officers and civilian employees, court interpreters, community 
volunteers, and friends or relatives of accused persons. Twenty-four hour telephone 
interpreter services are also available in some places. Police services in the Greater 
Toronto Area can call the AT&T Language Line, based in the United States, which 
employs interpreters for more than 140 languages. Northern cities such as Thunder 
Bay and Kenora have interpreter programs with 24-hour service. Most police 
services rely on more than one interpretation source, but apparently only one urban 
police service, in Guelph, routinely uses paid professional interpreters. 

Superficially, this array of services may seem adequate. In practice, however, most 
police services give officers little or no guidance on when to use an interpreter or 
how to communicate effectively through an interpreter. Most police services do not 
have formal policies on the use of interpretation services, but rely on ad hoc 
arrangements. Working with interpreters is not a priority in police training, even in 
areas with large multilingual populations. Few Ontario police services allocate 
training resources to teaching officers to identify linguistic needs and secure 
appropriate services. 

In general, we found that many police officers are unhappy with existing policies 
and practices. They recognized that communication barriers may prevent linguistic 
minority accused from exercising their rights. A police sergeant, expressing the 
frustration we heard from others, told the Commission, "if you want to see the 
justice system work fairly, provide the interpreters." 

With linguistic diversity growing in Ontario, the fundamental legal right to speak 
with a lawyer diminishes unless information about it is communicated in a language 
the accused person understands. Police officers should make every effort to identify 
the most appropriate language in each case and to convey the formal caution in it. 
They should also be trained to identify subtle communication barriers that may 
impede understanding. Of particular importance is the ability to recognize when a 
person with an apparently competent surface grasp of English does not fully 
understand the language of the caution. * 

6.5 The Commission recommends that the Ministry of the Solicitor General and 
Correctional Services: 

a) translate the formal caution given to a suspect on detention or arrest into the 
principal languages spoken in various Ontario police jurisdictions. 



Research concerning linguistic minority students in Ontario, for example, suggests that "basic interpersonal 
communications skills" in English are usually achieved within two years of arrival in Canada, but more sophisticated 
language skills may require five to seven years James Cummins, "Age on Arrival and Immigrant Second Language 
learning in Canada: A Reassessment," Applied Linguistics 2, pp. 132-149 



198 EXAMINING PRACTICES 

b) direct police services to provide this caution to suspects in the appropriate 
languages before questioning them. 

6.6 The Commission recommends that police personnel receive training about 
the dangers of assuming competence in English when an arrested or detained 
person from a linguistic minority community has a surface grasp of English. 

An arrested or detained person who needs an interpreter to understand the right to 
obtain legal advice while in police custody also needs such assistance to 
communicate with the lawyer. The right to legal services assumes that lawyer-client 
communications are and are perceived to be private and privileged. Thus, this 
service should be provided by an interpreter who is independent of the police. The 
Legal Aid plan that funds the 24-hour toll-free line should be responsible for 
providing interpretation services for linguistic minority accused who want access to 
emergency legal advice. This service should be delivered through three-way 
telephone technology. 

6.7 The Commission recommends that the Ontario Legal Aid Plan be funded to 
establish three-way telephone communications to allow accused persons from 
linguistic minority communities who are in custody to speak with duty counsel 
through an interpreter. 

/Access to basic legal advice 

Access to comprehensible and timely advice about the criminal justice process is a 
major concern in many racialized communities. Many racialized accused neither 
know how the system works, nor understand their rights as accused persons or their 
responsibilities within the process. They may be unable to make informed choices 
about available options, such as diversion programs or plea resolutions, because they 
do not understand what is being offered or the implications of their decisions. 
Though some participants in our consultations emphasized the plight of linguistic 
minority accused persons, most insisted that those whose first language is English 
also need more information and advice than is currently available. 

Better access to advice and information shortly after charges are laid would 
undoubtedly alleviate anxiety and enhance confidence in the fairness of the charging 
system. Since the advice that an accused person needs mostly concerns legal 
procedures, the ideal would be to ensure that all accused persons can hire a lawyer 
if they wish. In practice, however, the ongoing crisis over funding the Ontario Legal 
Aid Plan suggests that extending full legal services to all accused persons unable to 
pay for a lawyer is not possible in the foreseeable future. But the likelihood that 
most accused will be able to hire a lawyer from their own resources is even more 
remote. Nevertheless, the principle of equality requires increased access to legal 
advice and information. Legal advice, even if falling short of full representation, is 
clearly needed. 



Charge Management 199 



Three services currently offered by the Ontario Legal Aid plan could be expanded to 
improve access to basic legal advice and thereby build confidence in the charging 
system. The first is the court-based duty counsel service for accused persons who do 
not have a lawyer. Duty counsel may do their best to answer questions if 
approached outside the courtroom, but their first responsibility is to represent 
persons appearing before a judge or justice of the peace. Especially in busy multi- 
court facilities, duty counsel seldom have time to give full explanations and advice 
even to those they represent in court, still less to others charged with criminal 
offences. Due to this workload, in-court duty counsel often recommend that accused 
persons apply for legal aid just to obtain answers to a few routine questions. 

The frustration of accused persons and duty counsel in court could be considerably 
reduced if a duty counsel was available to provide basic advice at these court 
facilities. Making advice available in this way would also reduce the burden of 
applications for legal aid when the accused simply wants basic advice." 

The second service that could expand is that provided by community-based duty 
counsel clinics.^ These clinics, located in facilities such as libraries, community 
centres and hospitals, make lawyers available for a few hours each week to provide 
general advice and assistance. At present, none of these clinics specialize in 
assisting charged persons, but we understand that lawyers are sometimes asked 
about the criminal justice process. 

Currently, this service is too modest to cope with the influx of new clients that 
would likely follow from more systematic attempts to help accused persons. But 
where local demands on legal aid are significant but insufficient to justify a full- 
time duty counsel to give advice at the courthouse, a duty counsel clinic appears to 
be an appropriate model to deliver basic advice. We recommend testing this model 
in pilot projects developed in consultation with legal aid clinics and community 
groups, which should also be involved in evaluating them. The location and range of 
services should respond to changing community needs around the province. 

The third service model is the legal advice certificate, which Legal Aid area 
directors may issue to accused persons to consult lawyers of their choice for up to 
three hours. '^ This mechanism appears well-suited to meet accused persons' needs 
for basic advice about the criminal justice process. The legal advice certificate also 
enables those who may be sureties or assume other responsibilities for persons freed 
on bail to obtain advice. 



Advice could also be provided to family and supporters of accused concerning sureties or other legal issues 
involving them. 

The Ontario Legal Aid Plan's 1992 report lists 35 such clinics across the province. 



200 EXAMINING PRACTICES 

6.8 The Commission recommends that - 

a) the Ministry of the Attorney General allocate additional funding to enable 
the Ontario Legal Aid Plan to have a duty counsel available to give advice in 
multi-court facilities. Such "advice duty counsel" would not generally appear in 
court, but would be available in private offices in or near the courthouse to 
provide immediate advice to accused persons, their supporters and family 
members. 

b) the Ministry of the Attorney General make provision to expand duty counsel 
clinics in response to changing community needs, after broad consultation and 
subject to review. 

c) where "advice duty counsel" or duty counsel clinics are not available, Legal 
Aid area directors publicize the availability of and issue legal advice certificates 
to accused persons and their families or supporters who request legal advice in 
criminal matters. 

yAccess to legal representation 

Legal advice is important, especially immediately after charges are laid. But an 
accused person often needs much more extensive counselling than advice schemes 
can provide. Such needs are recognized to some extent in the right to counsel 
guaranteed by the Canadian Charter of Rights and Freedoms. The crucial issue, 
however, is funding such services. 

Basic in-court representation at bail and sentencing hearings in the provincial 
division of the Ontario Court of Justice are available free of charge to accused 
persons, through the duty counsel program. For contested trials and many out-of- 
court counselling services as the case progresses through the system, an accused 
person who cannot afford a lav^er may apply for a legal aid certificate. 

Obtaining a legal aid certificate involves passing eligibility tests relating to the 
seriousness of the charges, the likely consequences of conviction and the financial 
resources of applicants. Once eligibility is established, the local area director issues 
a certificate to the accused, who may choose any lawyer on the legal aid panel who 
will take the case. 

The Commission found that many applicants from black and other racialized 
communities are confused or poorly informed about important aspects of the Legal 
Aid Plan, such as the location of offices and the relationship between the plan and 
obtaining a lawyer's services. For example, many applicants are disappointed not to 
find lawyers at the legal aid office. As a result, they may feel frustrated and badly 
served, which may contribute to anxiety in dealing with the criminal justice process. 

The application process was the subject of further criticism. We received complaints 
that legal aid staff appear unaware that extended families are common in many 
racialized communities. Many applicants reported that questioning of their precise 
financial responsibilities for dependent relatives was insensitive and intrusive. 



Charge Management 201 



Reports from Commission researchers who observed legal aid eligibility interviews 
suggested that officials seem generally sympathetic to applicants and do not treat 
black and other racialized persons worse than white persons. But they are required 
to ask. highly intrusive questions, especially about financial circumstances. For 
example, even the most obviously indigent applicants were usually asked if they 
owned real estate, RRSPs (personal pension funds), GICs (investment certificates) 
and the like.* While some applicants laughed at these questions, others were 
embarrassed and some clearly did not understand the questions. 

This research also reveals ways in which communication between intake officers 
and applicants from racialized communities may result in misunderstandings, 
confusion, increased stress and potentially unjust denial of applications. Three 
general patterns appeared. 

First, some applicants clearly required interpreter services. Since Legal Aid does not 
usually provide interpreters and these applicants typically could not afford 
professional interpreters, they tended to rely on family or friends. Sometimes legal 
aid staff had difficulty communicating with such an interpreter. Even when 
communication appeared effective, however, this solution was quite unsatisfactory 
given the sensitive nature of the questions. 

Second, some applicants with functional English were obviously unfamiliar with the 
vocabulary used in the interview. Often the applicant attempted to struggle through 
the process, and tried to be co-operative by answering "yes" whenever possible. But 
as the following example shows, communication can still be ineffective: 

Interviewer: "Do you have your charge screening form?" 

Applicant: "Yes." 

Interviewer: "Where is it?" 

Applicant: "Where is what?" 

Interviewer: "The form the police gave you." 

Applicant: "What form?" 

The third pattern involved English-speaking applicants whose accents or dialects 
were unfamiliar to the interviewing officers. These applicants were frequently asked 
to repeat their answers, often several times for each question. Though interviewers 
obviously did not intend to be harsh or disrespectful, these interviews often 
resembled interrogations. 

The Commission is satisfied that legal aid staff responsible for processing 
applications generally deliver a professional service, without discriminating against 
black and other racialized persons. However, the system for handling legal aid 
applications can be insensitive to the needs of these clients. No mechanism exists 
for implementing the Ontario Legal Aid Plan's stated objective to be "aware of and 



A few interviewers seemed embarrassed to pose these questions; some skipped them as the answers were obvious. 



202 EXAMINING PRACTICES 

responsive to the needs of groups with special needs or interests including ... ethnic, 
racial and linguistic minorities [and] ... native people."^'' We found no evidence of 
sustained outreach to ethnic, racial and linguistic minority communities, nor did we 
find any procedures for evaluating the plan's perfonnance regarding this objective. 

Not surprisingly, members of black and other racialized communities feel 
uninformed about legal aid, and this lack of information has an exclusionary effect. 
One consequence is that the legal aid plan is experienced as perpetuating systemic 
racism. 

6.9 The Commission recommends that the Ontario Legal Aid Plan - 

a) make linguistic and cultural interpretation services available during 
application interviews. 

b) prepare and widely distribute brochures and videos in the principal 
languages served by each area office that explain the range of services available 
through the plan, and the purpose and likely content of interviews to be 
conducted by staff. 

Once an applicant obtains a legal aid certificate, the next step is to find a lawyer. 
Though Ontario lawyers may advertise their services, such publicity provides little 
useful information about what matters most to many racialized accused persons, 
such as the lawyer's record, experience, skills, or professional empathy with 
members of their communities. All Legal Aid offices maintain a list of lawyers who 
accept certificates, and the list indicates if a lawyer speaks a language other than 
English. Otherwise, the Legal Aid office provides no details about factors that 
concern many applicants. 

The Commission received many complaints about the difficulties racialized accused 
experience at this stage. The paucity of information available at Legal Aid offices 
led many applicants to try to question staff Clients' frustration was obvious when 
staff members correctly explained that they could not give detailed information or 
make referrals to specific lawyers.^' 

Obviously, many white legal aid clients have no better formal sources of 
information about lawyers than clients from black and other racialized communities. 
Differences in past experiences of white and racialized applicants, however, may 
significantly affect their reaction to what they may perceive as unhelpful behaviour 
by service providers. Many black and other racialized Ontarians experience racism 
throughout their lives, and are particularly apprehensive about dealing with powerful 
authority systems such as the criminal justice system. They find that white people 
are often unaware of subtle racial factors that may influence criminal justice 
processes. Their experience of being racialized may be dismissed or denied. Even 
worse, sometimes white persons in positions of authority appear to harbour 
racialized assumptions and stereotypes. 



Charge Management 203 

Given this background, black and other racialized accused persons may be 
particularly anxious to find lawyers who accept and understand the problems of 
living in a racialized society. Sometimes this concern is expressed as a preference 
for a lawyer of the same racial origin. More often, however, black and other 
racialized accused persons simply wish to hire a lawyer, of any racial origin, who 
understands racism. 

The Legal Aid Plan's capacity to address this problem effectively is limited. A 
system in which lawyers proclaim their professional empathy or anti-racism 
credentials is hard to envisage, but the problems that some racialized accused may 
face in finding a lawyer they trust should not be ignored. Useful initiatives could 
probably be developed by community-based agencies, which could maintain their 
own referral lists and informally share information with those persons who need a 
lawyer. 

The Ontario Legal Aid Plan could help, however, by being mindful of the 
experience of racism when racialized clients apply to change their lawyers. At 
present, because a change in lawyers may be expensive, the Ontario Legal Aid Plan 
makes it difficult. Applicants are warned that change is permitted only in 
exceptional circumstances, one of which is when - 

a client indicates that there is a complete breakdown of his or her relationship with 
counsel, and this is confirmed by counsel. The parties will be encouraged to reconcile, 
but if such an attempt is made and fails, then a change of solicitor will be permitted. 
Mere dissatisfaction will not be regarded as a complete breakdown.'* 

By requiring an accused to attempt reconciliation, the Ontario Legal Aid Plan may 
inadvertently exacerbate tensions over perceived racism. A racialized person who 
believes a lawyer acts in a racist manner may well view this requirement as 
disregard for concerns about racism. In such circumstances, attempted reconciliation 
is unlikely either to mend the relationship with the lawyer or to build confidence 
that the criminal justice system seriously opposes racism. 

An official commentary on the policy regarding changing lawyers in non-family law 
cases directs Legal Aid area directors to take account of some special needs. For 
example, area directors are "to adopt a fiexible approach for persons facing charges 
that upon conviction would result in a significant loss of liberty," and must be 
"mindful of the vulnerability of refugee clients and the serious consequences of the 
refugee determination process." We propose a similar approach for dealing with 
requests from accused who perceive the relationship with their lawyer to be tainted 
by racism. Area directors should be mindful of the subtleties of racism, and 
reconciliation should not be required where it would be pointless. 

6.10 The Commission recommends that the Ontario Legal Aid Plan direct area 
directors to take a flexible approach to requests for a change of lawyer if the 
client maintains that racism has caused the relationship with the lawyer to 
break down. 



204 EXAMINING PRACTICES 

Pre-trial resolution - plea bargaining 

Crown attorneys have discretion to reach agreements with defence counsel about 
how some matters arising from charges, such as a proposed sentence, will be 
presented to a judge. Typically, these agreements are based on an accused person 
giving up the right to make the state prove guilt at trial. In return for the accused's 
willingness to admit guilt in court on at least one charge, a crown attorney may, for 
example, agree to withdraw other charges against the accused or a co-accused, 
accept not guilty pleas to other charges, or propose jointly with defence counsel a 
less severe sentence than the accused is likely to receive if convicted after a trial. 

Deep distrust of the system of resolution agreements, or plea bargaining as it is 
commonly known, was among the most recurrent themes of the Commission's 
public consultations. Parents alleged that some defence counsel either make no effort 
to investigate whether accused young people have plausible defences, or quickly 
seek to resolve cases without giving the accused time to consider the implications of 
a guilty plea. Representatives of linguistic minority communities, particularly those 
supporting victims, complained that criminal justice professionals too often seem 
concerned only with getting through the list of cases. They had little confidence that 
the resolution process entails careful consideration of all relevant factors to ensure 
justice. Accused persons reported concerns about police officers involved in a case 
entering the trial judge's office while defence and crown counsel were discussing 
pleas with the judge. Prisoners in several institutions insisted that sentences (if not 
trials) are orchestrated by crown and defence counsel, with the police playing a 
considerable role through overcharging (laying more charges than are warranted, or 
more serious charges, to encourage the accused to plead guilty to a lesser charge). 
Everywhere we went in the province, we found cynicism and pessimism about a 
process that many believed should be abolished. 

Such opinions reflect the controversy that has always surrounded plea bargaining. 
Critics have attacked its secrecy, the risk that accused persons may be (implicitly) 
pressured into pleading guilty, the lack of procedural protections against coerced 
guilty pleas, and the potential for discrimination in outcomes. "The merits of the 
case take second place to the bargaining strength and skills of the parties," a Law 
Reform Commission working paper points out.^' 

Proponents of plea bargaining, by contrast, believe it is inherently desirable and 
benefits both the accused and the criminal justice system. Making this point, the 
Martin Report approvingly quotes a United States Supreme Court summary of the 
benefits of plea bargaining: 

Disposition of charges after plea discussions is not only an essential part of the process 
but a highly desirable part for many reasons. It leads to prompt and largely final 
disposition of most criminal cases; it avoids much of the corrosive impact of enforced 
idleness during pre-trial confinement for those who are denied release pending trial; it 
protects the public from those accused persons who are prone to continue criminal 
conduct while on pre-trial release; and by shortening the time between charge and 



Charge Management 205 



disposition, it enhances whatever may be the rehabilitative prospects of the guilty when 
they are ultimately imprisoned." 

Having endorsed resolution discussions and agreements as useful, the Martin 
Committee made several recommendations to promote them.* It proposes, for 
example, that crown attorneys and defence counsel have a professional obligation to 
meet and attempt to reach agreements. The Committee also recommends that crown 
attorneys should not set dates for preliminary hearings or trials before resolution 
discussions are held, unless the accused is in custody or the case is lengthy or 
complex. Again as part of the thrust to promote resolutions, judges are encouraged 
to participate in pre-trial conferences with crown and defence counsel^ to reach 
agreements about any issue raised by the charges, including pleas and possible 
sentences.^' 

The official response to the Martin Report indicates that the Ontario criminal justice 
system is fully committed to the plea resolution process.'^" The problem remains, 
however, that accused persons excluded from the discussions may be highly 
suspicious of "deals" struck on their behalf. To many black and other racial ized 
accused, such exclusion is one more reason to believe that the criminal justice 
system is attempting to hide mistreatment of them. 

Three aspects of the resolution system are of particular concern. First, unrepresented 
accused offered a plea resolution may have little understanding of the case against 
them or how the evidence may affect a resolution proposal. Without full 
comprehension of the crown's case, unrepresented accused are severely 
disadvantaged. 

The second problem is the exclusion of accused persons from resolution discussions, 
especially the pre-trial conference where agreements may be reached affecting their 
fate.* Obviously, the accused must assent to any such agreement before it is 
presented in court. In practice, however, many accused persons feel their lawyers 
attempt to "sell" the terms of an agreement that was drawn up without them. They 
complain that they do not know what transpired during negotiations, and feel they 
have little choice but to agree. 



X 



Most of the recommendations concerning crown attorneys' discretion are implemented as guidelines in the Crown 
Policy Manual released in January 1994 Many other recommendations, such as those involving judges, who are 
constitutionally independent of llie Attorney General, or that require a Criminal Code amendment by the federal 
government, arc being adopted in practice even if formal policies and procedures have not changed. 

Two types of pre-trial conferences can be found in tlie Ontario criminal justice system. One is mandated by s. 625.1 
of the Criminal Code, which requires a pre-trial conference with a general division judge prior to any jury trial. The 
other is based on Rule 28.05 of the Criminal Proceedings Rules, which authorizes judges to conduct such 
conferences v^ith the consent of the prosecutor and counsel for the accused. 

In the interests of promoting a frank exchange among the crown attorneys, defence counsel and judge, the Martin 
Committee chose not to recommend the presence of the accused, a court reporter or any other person in these 
meetings. 



206 EXAMINING PRACTICES 

Third, serious concerns persist that accused persons have not always understood the 
nature or implications of a resolution agreement they are asked to accept. Such 
incomprehension has been widely reported by and on behalf of accused who have a 
lawyer, and is likely even more prevalent among unrepresented accused. 

Negotiating on a level playing field: full disclosure 

Accused persons have a constitutional right to disclosure of all relevant information 
the Crown has about the charges, whether the case is disposed of by trial or plea. 
Represented accused exercise this right through defence counsel, who obtain 
disclosure on their behalf, evaluate the information and determine whether a guilty 
plea is advisable. Unrepresented accused, by contrast, may not even know that the 
right to disclosure exists, still less how to obtain information from a crown attorney 
or how to assess it. 

Even before the recent crisis in Legal Aid funding, both the proportion of 
unrepresented accused and pressure to use the resolution system were increasing. In 
particular, implementation of charge screening has considerably increased the 
number of charges dealt with summarily rather than by indictment. Because Legal 
Aid officials generally assume that conviction of a summary offence is unlikely to 
pose a serious risk to a person's "liberty or livelihood," fewer accused are being 
granted legal aid certificates.* This change has also increased pressure to resolve 
pleas and other issues arising from summary prosecutions efficiently so that court 
and human resources may be released for the more serious charges prosecuted by 
indictment. This drive for efficiency might, for example, discourage use of the 
courts to decide issues that could be clarified or resolved by earlier discussion. 

Many unrepresented accused are uninformed about the value of resolving anything 
and may not understand what issues require clarification. Disclosure of the Crown's 
case may help, but only if accused persons know how to use the information 
effectively. Clearly, most unrepresented accused will simply not be able to do so. 

The Ontario Legal Aid Plan has responded to this problem by making duty counsel 
available as needed to assist unrepresented accused persons obtain disclosure. This 
service should be expanded and formalized. In particular, once approached by an 
accused, duty counsel should be responsible for securing disclosure from the crown 
and reviewing the information with the accused person, explaining the resolution 
process and summarizing the accused's options. 

Information about duty counsel's ability to obtain disclosure should be 
communicated in the appropriate language to accused persons. Careful monitoring 
and evaluation of this service are necessary to ensure that unrepresented accused 
receive timely disclosure. As part of its monitoring, the Legal Aid Plan should 



Legal Aid ofTicials have estimated that in some parts of Ontario the number of legal aid certificates issued has 
decreased by some IS percent since the Martin recommendations were implemented. 



Charge Management 207 

solicit the views of accused persons as well as the perceptions of duty and crown 
counsel. 

6.11 The Commission recommends that - 

a) the Ontario Legal Aid Plan be specially funded to ensure that dut>' counsel is 
able to assist unrepresented accused persons to obtain disclosure of the case 
against them. 

b) information about such duty counsel services be included in all official 
documents given to accused persons. This information should use plain 
language and be available in a variety of languages that reflect Ontario's 
linguistic diversity. 

c) Legal Aid area directors work together with local court administration 
committees and interested individuals and community groups to ensure that 
unrepresented accused obtain disclosure in a complete and timely fashion. The 
views of unrepresented accused persons should be surveyed, and an annual 
report should be published as part of the Legal Aid Plan's annual report. 

Attendance at pre-trial conferences 

When the accused is represented, the process for reaching a resolution may entail 
several preliminary discussions between crown and defence counsel. Towards the 
end of that process, the lawyers may be joined by a judge for a pre-trial conference 
that attempts to reach an agreement to present in court.* 

Generally, crown and defence counsel meet privately with a judge at a location that 
varies according to local resources. Some conferences are held in the judge's office 
(usually called "chambers"), some in a "motions" court, others in a courtroom 
outside regular court hours and without the public or a court reporter. 

Accused who have counsel do not attend pre-trial conferences. The primary rationale 
for excluding them is that their presence may inhibit the informal and free-ranging 
discussions that are deemed the hallmark of productive pre-trial conferences."" The 
interests of the accused person are considered fully represented by defence counsel, 
who may arrange to have the accused available in the building for consultation. 
Other reasons sometimes given for exclusion of accused persons include security 
concerns and the need to exchange information that should remain confidential to 
protect an accused or someone else. 

The strength and bitterness of community concerns about secrecy and allegations of 
betrayal during plea bargaining suggests that the traditional exclusion of accused 
persons should be re-thought. In practice, if not in law, a pre-trial conference is part 
of the trial. Moreover, at pre-trial conferences required by the Criminal Code - 
before jury trials - arrangements are made for the attendance of the accused in the 



Unless the parties agree otherwise, the judge who conducts a pre-trial conference is not the judge who ultimately 
conducts the trial or hears a guilty plea. 



208 EXAMINING PRACTICES 

rare instances when the accused is unrepresented. Since justice requires that the 
accused be present throughout the trials, it would seem also to entail the right to 
attend the pre-trial conference. 

However, the Martin Report, after extensive consultation with judges, lawyers and 
other criminal justice professionals, did not agree.''^ While the Commission believes 
that attendance of accused persons, if unreservedly adopted, could considerably 
enhance public confidence in the justice system, this is unlikely if legal 
professionals are not committed to it. Accordingly, as a preliminary measure, we 
suggest pilot projects that extend participation in pre-trial conferences to accused 
persons. 

Such projects could be established across the province and could employ different 
types of inclusive pre-trial conferences. One pilot project might, for example, 
conduct all or part of the conference in open court; another might let accused 
persons be accompanied by a courtworker. Some projects should be attached to 
youth courts and provide for the attendance of a parent or guardian with or in place 
of the young person, unless the parent would be excluded from court proceedings 
under the Young Offenders Act. 

Participants in the pilot projects should be regularly surveyed for their experiences 
and views. The projects should be fully evaluated after two years and successful 
models should be replicated across Ontario. 

6.12 The Commission recommends that - 

a) pilot projects in which accused persons attend pre-trial conferences be 
established. Interpreters should be present if necessary. 

b) in cases involving accused persons charged under the Young Offenders Act, 
parents or guardians be entitled to attend such conferences, unless the Act 
would exclude them from court proceedings. 

c) surveys of all participants in these pilot projects be regularly conducted. 
Outcomes of these surveys should be reviewed by a consultative committee, 
which should report to the Attorney General after two years. 

In some jurisdictions, a police officer involved in a case accompanies the crown 
attorney to the pre-trial conference. The standard justification for this practice is that 
the officer is usually in the best position to provide up-to-date information, such as 
explaining why full disclosure has not yet been made, or reporting the availability of 
witnesses or condition of the victim. Although the attendance of the officer may be 
benign, an accused person may perceive injustice in such a private meeting. 

6.13 The Commission recommends that a police officer connected with a 
prosecution should not participate in pre-trial conferences unless the accused 
person is present. 



Charge Management 209 

Plea comprehension inquiries 

When accused persons plead guilty, they waive the right to compel the state to 
establish guilt beyond a reasonable doubt. They may do so hoping their co-operation 
will be rewarded by a reduced sentence, because of remorse or a wish to take 
responsibility for an offence, to conclude the criminal process, to reduce the time 
spent in prison before conviction, or for many other reasons. Accused persons may 
also waive the right when they do not fully understand the implications of admitting 
guilt, are intimidated by the process, or because they feel pressured."^ 

As advocates for the accused, defence counsel are responsible for ensuring that their 
clients understand the nature and consequences of a guilty plea and freely consent to 
waive their right to a contested trial. When accused persons are not represented by 
counsel, responsibility for fair treatment of the accused passes to the judge. In this 
role, the judge is expected to satisfy herself or himself in open court that the 
accused understands and voluntarily consents to the plea. 

Despite these protections, complaints that accused persons do not understand the 
implications of pleading guilty, or feel coerced into making a guilty plea are 
reported by and on behalf of represented as well as unrepresented accused. The 
Commission received several accounts of racialized accused being unduly pressured 
to plead guilty by the police, by various well-meaning but badly informed advisers, 
and by defence or duty counsel anxious to resolve the charges quickly. Many of 
these accounts echoed the findings of a Canadian Sentencing Commission study of 
the views of 129 Quebec prisoners about plea resolution: 

These inmates indicated that in their view the outcome of any particular case was 
"fixed" in advance of the sentencing hearing. The sentencing decision was orchestrated 
by the police and crown attorney who worked in collaboration with defence counsel. 
These inmates were so concerned about the inability of defence counsel to protect their 
interests in all or most cases that they recommended the appointment of an independent 
third party to represent their views during plea negotiations."'' 

We also found concerns that many racialized accused are too bewildered or 
intimidated to speak up if they do not understand court proceedings. This problem is 
particularly widespread among accused from linguistic minority communities, but 
may also be experienced by English-speaking accused. Again, we found that the 
presence of defence counsel does not necessarily guarantee that accused persons 
understand the implications of pleading guilty or feel protected against injustice. 

The Martin Committee proposed greater openness in court proceedings, 
recommending that crown attorneys should normally announce in court that 
resolution discussions took place and that an agreement was reached. The facts of a 
case should be fully presented at a plea or sentencing hearing after a pre-trial 
conference, it said. 

As a further safeguard, the Committee proposed that judges conduct a "plea 
comprehension inquiry" in open court whenever a guilty plea is made."' This inquiry 



210 EXAMINING PRACTICES 

is intended to ensure that the plea is voluntary and that an accused person 
understands the nature and consequences of a guilty plea and that the court is not 
bound by any resolution agreement. Importantly, the Committee recommended 
making such an inquiry even if an accused is represented by counsel.' 

The Commission fully endorses the plea comprehension inquiry whenever an 
accused pleads guilty. The inquiry should be conducted in language appropriate to 
the language skills, education level and age of an accused, and the questions should 
address three aspects: the accused's comprehension, voluntariness and understanding 
that the judge is not bound by any agreements. Young persons should also be asked 
if they have had an adequate opportunity to discuss the proposed plea with a parent 
or guardian in private; where appropriate, the parent or guardian should be asked the 
same questions. 

Questions should be carefully designed to elicit signs of confusion or 
misunderstanding. To facilitate the development of clear and effective inquiries, the 
Ministry of the Attorney General should collect examples of inquiries used in 
Ontario and other jurisdictions, and submit them for rewriting into plain language 
and translation into a variety of languages that reflect Ontario's linguistic diversity. 
Inquiry questions in plain language should be made available to judges, and 
translations should be given to court interpreters. 

6.14 The Commission recommends that - 

a) before accepting any plea of guilty, the presiding judge conduct an inquiry to 
ascertain the accused's comprehension of the nature and implications of the 
plea, voluntariness and understanding of the independence of the judge. This 
plea comprehension inquiry should be conducted in language appropriate to the 
age, education level and linguistic skills of the accused. 

b) the Ministry of the Attorney General collect written examples of plea 
comprehension inquiries for rewriting into plain language, and translate 
standard questions into various languages that reflect Ontario's linguistic 
diversity. 

c) the Attorney General seek an amendment to the Criminal Code requiring a 
sentencing judge to conduct a plea comprehension inquiry whenever an accused 
pleads guilty, regardless of whether the accused is represented by counsel. 



The Martin Report noted that when an accused is unrepresented, many judges were already making inquiries similar 
to those it recommended. Provincial Division Judge Ian A. MacDonnell has suggested questions that judges may use 
to ascertain voluntariness, comprehension of the plea and understanding of the judge's independence. (Ian A. 
MacDonnell, "Selected Sentencing Issues," paper prepared for the January 1994 Toronto Regional Seminar of the 
Ontario Court of Justice (Provincial Division) [on file)). 



Charge Management 211 

Victims and charge management 
Mandatory charging 

The dominant issue raised during our investigation into victims' concerns about 
charging practices was mandatory charging poUcies in family violence cases. These 
policies, now in effect at federal, provincial and local levels, respond to women's 
struggles to ensure that violence in the home is taken seriously. They generally 
direct the police to charge, and crown attorneys to prosecute, those who commit 
violent offences in a family setting. While exceptions are permitted in unusual 
circumstances, the policies are intended to reduce or eliminate both police discretion 
to handle such incidents informally and crown attorneys' discretion to withdraw 
charges or otherwise abandon prosecutions. Of particular importance is the directive 
that charges should be laid and prosecutions proceed even against the victim's 
wishes. 

Many people view official recognition that the criminal justice system should play a 
significant role in the struggle against violence in the home as essential to realizing 
women's rights to live free of violence. Some advocates of victims who participated 
in the Commission's consultations made this point forcefully, although they also 
insisted that criminalizing abusers is only one aspect of a long-term solution. 
Services for women subjected to abuse, treatment of abusers, public education and 
prevention initiatives are all necessary to eliminate violence in the home. 

Other advocates for abused women from racialized communities strongly supported 
those other initiatives, but were highly critical of mandatory charging policies.'*' Far 
from increasing the safety of women, they indicated, mandatory charging may be 
driving family abuse underground and so increase the danger for racialized women 
and their children. These advocates report that mandatory charging policies have 
reduced women's options, and that the policies lack credibility among many 
racialized women. These problems were said to make many racialized women even 
more vulnerable to abuse than if discretion were exercised. 

Mandatory charging is perceived to have made women believe they have no choice 
or voice in charging and prosecution decisions. The danger is that women who do 
not want the abuser prosecuted may decide not to call the police when intervention 
is essential. 

Many racialized women do not see the criminal justice system as an ally, but as an 
overly intrusive and destructive force. Though they might, at times, wish to call the 
police for assistance in calming a violent or potentially violent confrontation at 
home, they also want some control over the consequences of doing so. They want in 
particular to limit their subsequent involvement in the criminal justice system, which 
they may perceive as alien, overwhelming, and a source of yet more problems. A 
shelter worker put it this way: 

"There is definitely an increase in the incidence of domestic violence in our society .... 
However, it would appear that women from the black and minority communities are less 



212 EXAMINING PRACTICES 

protected, because there is also the added fear of turning to the police when they feel 
threatened. They are not only afraid for themselves, but they feel that their children 
could lose their father forever and that the situation could escalate into a much bigger 
problem." 

A joint submission from three women's organizations took a wider view: 

"Wife assault and violence against women need to be addressed in the context of racial 
oppression and police violence against marginalized communities .... The strategy of 
'wife assault as a crime' is not responsive to the complexities of violence against women 
in the context of a racist society. We must carefiilly consider the consequences of calling 
for increased police involvement in 'domestic violence' situations and whether this will 
lead to a greater presence of the police in our communities and an increased risk of 
racist violence in the poorer, marginalized communities, such as public housing projects. 
We cannot afford to minimize or deny one form of violence women experience for the 
sake of another." 

But not all women (or women's advocates) from racialized communities are 
sceptical of mandatory charging. Indeed, some suggested that the most serious 
problem is that directives to charge and prosecute are still not treated as mandatoiy. 
They said police officers may easily avoid charges in family violence cases by, for 
example, classifying incidents as breaches of the peace or causing a disturbance, and 
crown attorneys may abandon family violence prosecutions despite official policy. 

The Commission believes that laying charges in cases of domestic violence should 
continue to be mandatory. The general principle behind mandatory charging is well 
motivated and appears to be working successfully in many communities. However, 
rigid adherence to this policy in the prosecutorial stage may have adverse 
consequences. When a woman decides that proceeding with prosecution will harm 
her, this decision should be respected. 

6.15 The Commission recommends that whenever crown attorneys are satisfied 
that a woman has decided voluntarily, and not as a result of coercion by the 
accused or others, that prosecution of an assault charge will harm her, her 
decision should be treated as constituting "exceptional circumstances" requiring 
withdrawal of the charges. 

Justice services for victims and witnesses 

Many victims say that a vigorous response by the criminal justice system to loss or 
injury they have suffered would help restore their sense of dignity and well-being. 
Often, however, victims find their encounters with the criminal justice system a 
traumatic experience that intensifies anxiety and amounts to "secondary 
victimization." 

Victims complain about receiving little information about the progress of 
investigations or charges. If they are not required to appear as witnesses, no one 



Charge Management 213 

may bother to tell them when a suspect has been found. They may not even be 
informed of a prosecution or its outcome. 

Victims who will appear as witnesses may also have unsatisfactory experiences. 
Inconvenient court dates may force victims to take time off work or make expensive 
child-care arrangements. Many victims arriving at court are confused. Court 
buildings are mysterious places, often crowded with people who seem too busy to 
help them find the right room or explain what will happen. Once inside the court, 
victims who have endured considerable stress in preparing themselves to give 
evidence may be disconcerted by repeated adjournments or last-minute guilty pleas. 
Above all, trials are often devastating for victims or witnesses who seek recognition 
of their suffering, because, as one noted expert states - 

... it is the business of the defence ... to make [prosecution] witnesses appear so 
inconsistent, forgetful, muddled, spiteful or greedy that their words cannot safely be 
believed. Victims and defendants, prosecution and defence witnesses alike face 
accusations of mendacity, impropriety, and malice. Victims who come to court 
supposing that a trial will be an assertion of [the wrongs done to them] will discover that 
it is their probity that is at issue as well. In a contested trial they will almost certainly be 
exposed to a bruising interrogation in which there is no presumption that they are the 
injured party. At best they will be the alleged victim."' 

In response to this problem of secondary victimization, Ontario has developed the 
VictimAVitness Assistance Program." This program is intended to make the criminal 
justice process less daunting and more responsive to victims who will appear as 
prosecution witnesses.'*^ Its staff provide direct services to victims after charges are 
laid and until the court case concludes. 

The VictimAVitness Assistance Program is funded from allocations to the Ontario 
Women's Directorate for its Sexual Assault and Wife Assault Initiatives, which has 
significant implications for the program's services. While Victim/Witness Assistance 
Program workers give basic information to any victim who contacts the program, its 
assistance and counselling services are intended primarily for victims of wife 
assault, sexual assault and child abuse offences. 

The VictimAVitness Assistance Program provides victims with information and 
support during the charge management process, and prepares them for a contested 
trial. These functions typically include explaining charge management procedures 
and court practices, assisting communications with the crown attorney, and 
informing them of progress in a case. 



The program, which began in 1987, was initially funded through the Family Violence Initiatives of the Ontario 
Women's Directorate, and piloted in ten crown attorney's offices: Ottawa, Hamilton, Windsor, Kingston, Kenora, 
Sudbury, Lxjndon, Pembroke, North York and Etobicoke. In 1989, services were extended to Scarborough and 
Newmarket 



214 EXAMINING PRACTICES 

The program has fared well in external program reviews. Its staff are viewed as 
empathetic, knowledgeable about the justice system and committed to their clients. 
The service is perceived as cost-effective, and surveys of both clients and 
professional groups indicate high levels of satisfaction. ■*' 

Missing from reviews of the VictimAVitness Assistance Program, however, is a 
substantial focus on its performance in meeting the needs of black and other 
racialized victims. Our investigation revealed two major concerns. First, as program 
staff themselves recognize, the Victim/Witness Assistance Program generally does 
not appear to be reaching many vulnerable women in black and other racialized 
communities. Second, arrangements for interpreter services are frequently ad hoc, so 
many women and children from racialized communities are less well served than 
English- and French-speaking clients. 

The primary access barrier for black and other racialized victims is lack of 
information about the program. Previous reports have consistently found low levels 
of awareness of the Victim/Witness Assistance Program among racial minority 
organizations and individuals. '" Program staff we interviewed admitted, "it is 
difficult to know if the message is getting through to the people who need it."'" 
Commission research suggests that although information is reaching some women 
from racialized communities, more needs to be done. 

While some community agencies serving racialized women reported that they 
received information about and made regular referrals to the Victim/Witness 
Assistance Program, most said they knew very little about the program and that their 
clients did not use it. Many commented that they had neither received information 
about the program nor been contacted by local program staff. Among those who had 
heard of the Victim/Witness Assistance Program, there was suspicion about its role. 
It was suggested, for example, that the program functions as an "arm of the 
government" and that it would primarily represent the interests of the justice system, 
if necessary at the expense of the victim. 

We recognize that the Victim/Witness Assistance Program staff and many of their 
clients would vigorously contest such perceptions. We report the comments to 
illustrate the program's lack of credibility among black and other racialized women 
due to its low profile in their communities. 

Many of the program's staff are aware of its failure to reach black and other 
racialized communities, and have begun to address the problem. Leaflets are now 
available in ten languages other than English and French, and some program co- 
ordinators, on their own initiative, have become active in organizations serving local 
racialized communities. To foster public education, head office staff and co- 
ordinators make themselves available to speak to community organizations. 

To a large extent, however, the success of these efforts in reaching black and other 
racialized people depends on the imagination and drive of individual co-ordinators. 



Charge Management 215 



Groups that do not know of the Victim/Witness Assistance Program, for example, 
would not ask program workers to speak to them. Unless the Victim/Witness 
Assistance Program is funded to undertake a more active and systematic outreach, 
its services to victims from black and other racialized communities will likely 
continue to be unsatisfactory. 

Since communication is the essence of the Victim/Witness Assistance Program, we 
were surprised to learn that its official mandate does not provide for cultural 
interpreter services." Instead, each local office appears to make its own 
arrangements, according to the co-ordinator's perceptions of need and the services 
available. At some sites, the program co-ordinator has access to well-trained cultural 
interpreters. But at others, workers rely on volunteers from local agencies or court 
interpreters. Volunteer interpreters cannot be expected to be available whenever their 
services are needed. In addition, there is no guarantee of confidentiality and the 
quality of interpretation when volunteers are used. Such an essential service should 
not depend on volunteers. 

Availability is also a problem at program sites that rely on court interpreters, whose 
primary responsibility is to assist proceedings inside the courtroom. At these sites, 
court interpreter assistance is available only when their services are not required by 
the court. 

Many Victim/Witness Assistance Program staff recognize the specific needs of 
racialized women from linguistic minority communities, and attempt to 
accommodate them. But a more systematic response is required. Research into the 
linguistic needs of victims and witnesses in each region should be conducted, and 
deficiencies in service delivery should be identified and corrected. Since the crown 
attorney's office deals with a wider range of victims and witnesses than those who 
are referred to the program, the regional senior crown attorney should be responsible 
for this research and evaluation. 

6.16 The Commission recommends that regional senior crown attorneys - 

a) conduct annual surveys of local crown attorneys, staff and users of the 
VictimAVitness Assistance Program to determine linguistic needs of victims and 
witnesses in each region and identify deficiencies in the provision of translated 
information. 

b) work with the VictimAVitness Assistance Program, community-based 
agencies and the police to expand the distribution and dissemination of 
information about the program to racialized communities. 

Finally, like others who have examined the VictimAVitness Assistance Program, the 
Commission is impressed with the quality of its services. Victims and witnesses 
throughout Ontario should be able to use these services. 



216 EXAMINING PRACTICES 

6.17 The Commission recommends that the VictimAVitness Assistance Program 
be expanded to serve all of Ontario's trial courts and to include cultural 
interpretation services. 



Charge Management 217 

Endnotes 

' Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory 

Committee on Charge Screening, Disclosure and Resolution Discussions, chair, G.A. Martin 
{^'Martin ReporO (Toronto: Queen's Printer, 1993), p. 13. 

^ Ibid., p. 19 

•' Ibid. 

"* In addition to assigning police officers the duty of laying charges, the Police Services Act 
provides that "a police officer has the powers and duties ascribed to a constable at common 
law." R.S.O. 1990, c. P-15, s. 42(3). 

'■ Criminal Code, s. 334, as amended by S.C. 1994, c. 44, s. 20. 

* Criminal Code, s. 355, as amended by S.C. 1994, c. 44, s. 21. 

'■ Criminal Code, s. 430(1 )(c) as amended by S.C. 1994, c. 44, s. 28. 

^ Criminal Code, s. 335. 

' Ontario Ministry of the Solicitor General, "Police Response to Wife Assault," Policing 
Standards Manual, Jan. 19, 1994. 

'" R. V. Paul P., unreported reasons for judgment of Otter Prov. Div. J., Dec. 12, 1994 (on 
file). 

" Province of Ontario, Commission on Systemic Racism in the Ontario Criminal Justice 
System, "Racial Minority Youth Processing in the Criminal Justice System," draft internal 
report, Feb. 21, 1994 (on file). 

'^ John A. Ditchfield, Police Cautioning in England and Wales (HMSO, 1976); Howard Parker, 
Maggie Cosbum and David TumbuU, Receiving Juvenile Justice (Oxford: Basil Blackwell, 
1981); Jim Dignan, "Repairing the Damage," 32 B.J. Crim. (1992) 453; J. Mott, "Police 
Decisions for Dealing with Juvenile Offenders," 23 B.J. Crim. (1983) 249. 

'■' James M. McDonald, Terry A. O'Connell, David B. Moore and Edward Bransbury, 

Convening Family Conferences: Training Manual (Sydney, Australia: New South Wales 
Training Academy, 1994) p. 5. 

''' The theory of reintegrative shaming is developed in John Braithwaite, Crime, Shame and 
Reintegration (Cambridge: Cambridge University Press, 1989). 

" Ibid. 

'" Ibid. 



218 EXAMINING PRACTICES 



"■/ Commission for Racial Equality, Cautions v. Prosecutions: Ethnic Monitoring of Juveniles 
by Seven Police Forces (London: 1992); see also, Roger Evans "Comparing Young Adult 
and Juvenile Cautioning in the Metropolitan Police District" [1993] Crim. L.R. 572. 

'^ See note 12; see also, Andrew Sanders, "The Limits to Diversion from Prosecution" (1988) 
28 B.J. Crim. 513. 

" Ontario Ministry of Attorney General, Crown Policy Manual, January 1994. 



20. 



Joseph de Fillipis, Federal Department of Justice (Toronto Region), letter of May 13, 1994, 
to Bruce Dumo, president of the Criminal Lawyers Association (on file). 



i^^y Martin Report (note 1), pp. 60-74; Crown Policy Manual (note 19), Policy C.S.I (charge 
^^ screening). 



22. 



Criminal Code, ss. 536(2), (4), 555, 561(1). Under the Code, the state may also require a 
trial by jury, even if the accused objects (s. 568). 



K^: J.A. Osborne, "The Prosecutor's Discretion to Withdraw Criminal Cases in the Lower 
Courts," (1983) 25 Can. J. Crim. 55. 



f ■ 

V24. 



25. 



26. 



Mike McConville, Andrew Sanders and Roger Leng, The Case for the Prosecution: Police 
Suspects and the Construction of Criminality (London: Routledge, 1991), p. 136. 

Martin Report (note 1), p. 91. 

Crown Policy Manual (note 19), p. 3. 



^^ "Protocol (Community Council Project)" agreement between the Department of Justice 
Canada (Toronto Regional Office) and Aboriginal Legal Services of Toronto, signed 
February 1994 (on file). 



28. 



29. 



30. 



C-41, S.C. 1995 c. 22, Royal assent given July 13, 1995; not proclaimed in force as of this 
publication. 

See note 27. 

Canadian Charter of Rights and Freedoms, s. 10(b). 



^' In R. V. Bartle (1994) 92 C.C.C. (3d) 289 and R. v. Pozniak (1994) 33 C.R. (4th) 49, the 
Supreme Court of Canada held that the form of caution issued to Ontario police officers in 
1992 was constitutionally sufficient. 



32. 



R. V. Vanstaceghem (1987) 36 C.C.C. (3d) 142. See also R. v. Pozniak; R. v. Bartle (1993) 
81 C.C.C. (3d) 353 (Ont. C.A), which concerned English-speaking suspects who said they 
had not fiilly understood their rights after the police officers had read the caution. The 
Ontario Court of Appeal held that it is only "when there is something in the circumstances 
that indicates the accused did not fully understand his rights that further information must be 
imparted" (at 357). 



Charge Management 219 



" R.S.O. 1990 c. L-9, s. 13(d) and Schedule 6 of the Legal Aid Regulations R.R.O. 1990, Reg. 
710. 

•^^ Law Society of Upper Canada, Ontario Legal Aid Plan Annual Report (Toronto: Law 
Society of Upper Canada, 1992), p. 4. 

•" R.R.O. 1990. Reg. 710, s. 84(1). Under the Legal Aid Regulations (note 30), duty counsel 
face similar restrictions. 

^^ Ontario Legal Aid Plan, "Change of Solicitor in Non Family Law Cases," December 1994 
(on file). 

" Law Reform Commission of Canada, "Criminal Procedure: Control of the Process: Working 
Paper No. 15'" (Ottawa: Supply and Services, 1975), p. 46. By contrast, a working paper 15 
years later stated that "... it would be a mistake to dismiss plea negotiation as a distasteful 
practice made necessary only by the unhappy reality of an overburdened criminal justice 
system. Plea negotiation is not an inherently shameful practice; it ought not, on a theoretical 
level, be characterized as a failure of principle." Law Reform Commission of Canada,"Plea 
Discussions and Agreements, Working Paper No. 60" (Ottawa: Supply and Services, 1989), 
p. 4. Since both views are expressed only in working papers, neither represents the 
Commission's official view. 

'*■ Santobello v. New York, 92 S. Ct. (1971) 405 at 498, quoted in the Martin Report (note 1), 
p. 290. 



39. 



Martin Report (note 1), recommendation 70. 



"" Ontario Ministry of the Attorney General, Community Policy Manual, January 1994, Policy 
R-1: "Resolution Discussions." 



41. 



42, 



43 



44. 



45. 



Martin Report (note 1), pp. 357-361. 

Ibid. 

R. v. K. (S.)(\995) 99 C.C.C. (3d) 376 (Om. C.A). 

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach - The Report 
of the Canadian Sentencing Commission (Ottawa: Supply and Services, 1987), p. 409. 

Martin Report (note 1), recommendations 55 and 56. 



"* For a helpful presentation and insightful analysis of such views see, Dianne L. Martin and 
Janet Mosher, "Unkept Promises: Experiences of Immigrant Women with the Neo- 
criminalization of Wife Abuse," (1995) 8 Canadian Journal of Women and the Law / 
Recherche Femme et Droit /." 

"' Paul Rock "Witnesses and Space in a Crown Court," (1991) 31 B.J. Crim. 226, p. 267. 

"** Ontario Ministry of the Attorney General, Victim/Witness Assistance Program (Toronto: 
Ministry of the Attorney General, Oct. 15, 1 99 1). 



220 EXAMINING PRACTICES 



49, 



Jamieson, Beals, Lalonde and Associates in collaboration with R.R. Ross Associates, The 
Victim/Witness Assistance Program: A Client User Satisfaction Survey (Toronto: Jamieson, 
Beals, Lalonde and Associates, 1987); A.R.A. Consulting Group, Review of Appropriate 
Service Delivery: Models to Meet the Meeds of MAG Clients (Toronto: A.R.A. Consulting 
Group, December 1991); Ontario Ministry of the Attorney General, Report of the Social 
Justice Review Committee (Toronto: Ministry' of the Attorney General, 1992). 



''■ Ibid. 



52. 



A summar>' of interviews of program staff and community members is in a Commission 
background research paper, Victim/Witness Assistance Program - Research Report March 
1994 (on file). 

R. V. K. (S.){\995) 99 C.C.C. (3d) 376 (Ont. C.A.) (as per note 43). 



Chapter 7 
Court Dynamics 



fWJhefher ... negative perceptions are well founded or not, we cannot 
be content to wring our hands and think it is all unfair. We must 
meet the challenge of those perceptions and, address them. We must 
he ever vigilant, constantly inquiring into our own conduct, and 
where bias exists, we must seek to eliminate it. 

- The Honourable Charles L. Dubin, Chief Justice of Ontario' 

This chapter reports on courtroom dynamics and practices that cause people to 
experience or perceive racial injustice. Such perceptions are significant because the 
Ontario legal tradition has long held that public confidence is fiandamental to an 
effective criminal justice system. Nowhere is this confidence more important than in 
the courts, where the entire criminal justice system's commitments to openness, 
accountability and equality are most visible. 

The Commission's research indicates that many Ontarians perceive courts to be 
unfairly biased against black or other racialized persons.* It also shows that judges 
and lawyers are generally aware of these views, at least insofar as they are held by 
racialized persons. More than eight in ten defence counsel and five in ten general 
division judges surveyed by the Commission, for example, recognize that racialized 
persons perceive unfairness in the courts.^ 

In recent years, judges of the Ontario Court of Appeal, and the Supreme Court of 
Canada have also acknowledged perceptions of racial injustice in courts (as well as 
systemic biases in practices). ^ For example, one reason Mr. Justice Doherty, 



See Chapter 2 regarding the Commission's survey of black, white and Chinese residents of Metro Toronto, which found 
that significant proportions of all three groups think judges treat black or Chinese people worse than white people. 

We asked defence counsel if they agree or disagree that "racial minorities often think they are treated unfairly by the 
courts." Ninety-one percent of lawyers with substantial racial minority clienteles and 83 percent of other lawyers agree 
or strongly agree. General division judges were asked explicitly to compare the perceptions of white and racial minority 
persons. Fifty-three percent agree or strongly agree that "racial minorities think they are treated unfairly by the courts 
more often than white people." 

221 



222 EXAMINING PRACTICES 

speaking for the Ontario Court of Appeal, gives for permitting a black accused 
person to question potential jury members about racist attitudes is that - 

[m]any blacks perceive the criminal justice system as inherently racist. A refusal 
to allow a black accused to even raise the possibility of racial discrimination 
with prospective jurors can only enhance that perception. By allowing the 
question, the court acknowledges tliat the accused's perception is worthy of 
consideration.' 

As our findings reported in Chapter 2 show, however, many Ontario trial judges and 
lawyers do not share the Ontario Court of Appeal's respect for and willingness to 
address perceptions of systemic racism in the courts. Some react instead by insisting 
the perceptions are groundless, not widely held or insignificant because they are 
based on anecdotes. Comments by two general division judges surveyed by the 
Commission illustrate what we heard from many other lawyers and judges: 

"I strongly disagree with those who allege there is systemic discrimination and 
racism in the court system in Ontario. There will always be anecdotal evidence 
to this effect, but tire hard evidence is exactly to the contrary. My extensive 
experience is that judges, lawyers and court personnel treat all people coming 
into conflict with the law m the same way." 

"I anticipate that the Commission, driven by tlie force of political correctness, 
will find that racism is rampant in the justice system - a conclusion that will not 
be based on hard evidence but, like Stephen Lewis's letter, on anecdote and 
unsubstantiated complaint. Failing all else, the Commission will find invisible 
racism - visible only to the commissioners." 

Defensive reactions such as these may reflect a view that systemic racism exists 
only where decisions about white and racialized accused in similar circumstances 
consistendy produce different results, and a belief that no such differences occur in 
the Ontario criminal justice system. Evidence of such differences is obviously 
important for identifying discriminatory practice, which is one important form of 
systemic racism. As we show in other chapters, evidence exists of racial 
discrimination in the Ontario criminal justice system. 

But to treat differential outcomes as the sole valid indication of systemic racism is 
to overlook the significance of the appearance of injustice to users and observers of 
the court system. Beliefs about injustice in courts are sustained by how individuals 
experience the court system and how they report their experiences to others. Thus 
the appearance of injustice is largely formed by perceptions and fed by anecdotes. 

Clearly, the public's knowledge and experiences of courtroom dynamics - as 
expressed in anecdotes and perceptions - are drawn from limited information. But 
they are not, for this reason, invalid. Nor are they less worthy of respect than the 
knowledge and experience of criminal justice professionals, which are limited in a 
different sense. Persons who regularly work in the courts have greater exposure to 
courtroom dynamics and practices than individual accused persons, victims, 



Court Dynamics 223 



witnesses, and their friends and families. More exposure, however, may not help 
professionals to understand the problems and injustices that users ;uid observers 
notice. Familiarity with court routines may dull awareness of their impact and block 
awareness of how courtroom environments and procedures are experienced by 
persons subjected to them. 

Others have documented community perceptions of injustice in courts;" the 
Commission's task is to suggest remedies. Mindful of this goal, we organized our 
research to identify courtroom practices and interactions that contribute to the 
appearance of racial injustice. To this end we observed court proceedings, conducted 
surveys, reviewed submissions, analyzed transcripts of trials, sentencing and bail 
hearings, and consulted with crown attorneys, defence and duty counsel, justices of 
the peace, interpreters and representatives of community agencies active in criminal 
justice issues. 

We begin by documenting a problem that we found with surprising frequency: 
judges, justices of the peace and lawyers referring to the foreign origins of accused 
persons (and sometimes also of victims or other witnesses) in open court. 
Sometimes the reference is obviously intended to be benign, in some instances it is 
linked to a legally relevant issue. More frequently, however, it is hard to discern any 
legitimate purpose - and occasionally, foreignness is an explicit reason for a harsh 
decision about an accused person. This tendency for some judges and lawyers to act 
as if a person's origin matters to the criminal justice system when it should not, 
results in a sense of exclusion amongst members of racialized communities and a 
lack of confidence that the system treats everyone equally. 

We then turn to various ways in which racialized persons experience courtroom 
practices and dynamics as exclusionary, emphasizing communication failures and 
other barriers to understanding. This section also addresses the image of justice as a 
white institution, conveyed by under-representation of black or other racialized 
persons among jurors, judges and lawyers. The chapter closes with discussion of the 
court ceremony that is used to "bind the conscience" of witnesses: the oath or 
solemn affirmation. 

Our focus throughout is the systemic aspect of practices that alienate or exclude. 
While we illustrate specific problems with examples of individual behaviours, our 
concern is the extent to which the system shows that racism is not tolerated and 
actively demonstrates commitments to inclusion and racial equality. In taking this 
approach, we adopt the views of senior judicial officials of England and Wales that 
judges and lawyers must treat what other people think of their conduct with the 
utmost seriousness. As the Lord Chancellor recognized - 

Offence may sometimes be caused not because we are prejudiced but amongst 
people of goodwill it is much more likely that in many situations we are totally 
unaware that others view our particular actions as prejudiced. We need to 
inform ourselves on these matters as well as we can.' 



224 EXAMINING PRACTICES 

And as the Lord Chief Justice of England and Wales recently stated, ensuring that 
courts are experienced as fair and inclusionary may require an active commitment to 
learning: 

I am quite sure that all Judges would wish to treat ever^'one who comes before 
them, in whatever capacity, on equal terms. But I suspect there is a perception 
by judges, just as by others, that to treat ethnic minorities fairly needs no more 
than good manners and patience. 

In fact, there is a great deal more to understanding tlie feelings and concerns of 
etlmic minorities than simply being polite and patient. There is a good deal of 
knowledge which is not generally understood about the culture, the language (by 
which I mean both oral and body language) and the sensitivities of various 
ethnic minorities. Much of this knowledge cannot be picked up merely through 
Oudicial] experience.' 

Uses of foreignness in Ontario criminal courts 

The tendency for judges, justices of peace and lawyers to refer to individuals' 
foreign origins or ethnic background is a significant cause of perceptions of racial 
injustice in the courts. Upon hearing or learning of such references, racialized 
persons assume that origin must matter to the criminal justice system - or else the 
statements would not be made - but it is hard to know what legitimate goals are 
served by reference to it. 

In many cases, it would not be easy for justice professionals to explain why they 
feel the need to talk about "foreignness." Only in the most limited circumstances 
does the Criminal Code treat citizenship or place of origin as relevant to criminal 
proceedings. Nor does the legislation define immigration status as directly relevant 
to decisions. Even where, as in the bail system, status is raised indirectly, the legally 
relevant issue is residence, not foreign origins.* 

Basic findings about references to foreignness 

Despite the Criminal Code 's silence on the relevance of citizenship, immigration 
status, place of birth or origin to crimina! proceedings, our research shows that these 
matters are routinely raised in court. We found that references to foreignness are not 
restricted to persons whose residential status in Canada is questionable, nor are they 
limited to bail court. A study of proceedings in Metro Toronto courts, for example, 
found that references to country of origin, immigration status, years in Canada and 



Persons charged with indictable offences who are not "ordinarily resident" in Canada are subject to the reverse onus bail 
procedure, in whicn they must "show cause" for felease. In the standard procedure, a crown attorney must show cause 
for detention (see Chapter 5). In addition, any person who is not ordinarily resident in Ontario, (or within 200 km of 
the court) may be required to deposit a sum of money as a condition of release on bail, but cash deposits are otherwise 
unusual. 



Court Dynamics 225 

other indications of "foreignness" occurred in a third of non-bail hearings involving 
black or other racialized accused and 28 percent of bail hearings. * 

A small minority (3%) of the references to foreignness observed in non-bail 
hearings were clearly negative; these were about as frequent in cases involving 
white accused persons as black or "other racial minorit>'" accused persons. 
References to foreignness classified as "neutral or positive" occurred in 44% of 
cases involving "other racial minority" accused persons, 21% of cases involving 
black accused persons and 9% of cases involving white accused. These references 
are frequently gratuitous. They might take the form "Mr. X has been gainfully 
employed since he came to Canada 20 years ago," or simply mention the accused 
person's place of birth or years in Canada. Though apparently benign, they may lead 
listeners to wonder why information about an accused person's origins matters to the 
criminal courts. 

Findings of the Commission's surveys of judges and defence counsel also suggest 
that references to foreignness are more common in cases involving racialized 
accused persons than white accused. We asked defence counsel and provincial 
division judges if "in general racial minority accused are questioned about their 
immigration status and country of origin more frequently than white accused." More 
than four in five defence counsel with a substantial racial minority clientele^ and 
two-thirds of other defence counsel agree with this statement, as do half of the 
provincial division judges. General division judges and crown attorneys were asked 
the same question, specifically with regard to bail hearings.* More than two in five 
general division judges at least somewhat agree that during these hearings, racial 
minority accused are questioned about immigration status and country of origin 
more frequently than white accused. 

Crown attorneys cleariy do not have the same perception as judges or defence 
counsel. Only one crown attomey (0.5%) agrees that a difference in frequency of 
questioning exists while 82%) disagree, most of them strongly. 

The Commission conducted a more detailed examination of references to 
foreignness in all 101 bail review and variation applications made in January 1994 



t 



t 



The study observed 217 court processes in various courts that serve parts of Metro with large black or other racialized 
communities. The researcher coded the accused as a white person in 113 proceedings (52 percent), as black in 56 (26 
percent) and as a member of another racial minority community in 48 (22 percent). Details of this study are in tlie 
Commission's Technical Volume. See Appendix B. 

We defme a substantial racial minority clientele to mean 40 percent or more of the defence counsel's clients. 

The question focused on bail hearings as a result of discussions with general division judges assigned to facilitate the 
Commission's work. Tlieir concern was that unless general division judges were asked specifically about bail, they might 
draw on experiences with extradition hearings, where questions about origin are commonly asked. The final version of 
the crown attomey survey simply adopted this version of the question. 



226 EXAMINING PRACTICES 

to the Ontario Court (General Division) in Metro Toronto. * This study shows a 
different pattern of comments from the court observation. Of the 92 transcripts that 
were available, 62 (68%) contained references to foreignness. Within this sample, 
bail hearing transcripts for four out of five "Asian" accused persons, but only one 
out of ten "South Asian" accused, had such a comment.^ Transcripts of bail hearings 
involving black or white accused were in the middle, references to foreignness were 
made in about half the cases for both groups. 

Many of these references appear to be informational, such as a crown attorney or 
defence lawyer simply stating that the accused "is a landed immigrant" or that the 
accused "was bom in ...." (another country or non-Canadian city). The relevance of 
the information in most of these cases is unclear, and sometimes the reference seems 
bizarre. One transcript notes, for example, the foreign birth of an accused person 
whose family moved to Canada when he was two years old, more than 40 years 
before the incident responsible for his court appearance. Another transcript shows a 
justice of the peace asking an accused person who had lived in Canada for 24 years 
why he was not yet a Canadian citizen. 

Perhaps the most troubling transcripts show lawyers referring to the immigration 
status of black or other racialized Canadians. In one case a crown attomey said of a 
young Asian male: "He was bom in Winnipeg. His immigration status is ... he is a 
citizen." Another transcript records the following exchange between defence counsel 
and young black accused: 

Defence Counsel: What is your status in Canada? 

BLACK ACCUSED PERSON: I'm a Canadian, well ... I was bom here... 

In both examples, the lawyers' words create doubt, however momentarily, about the 
Canadian identity of the accused person; and in the second example, that doubt 
appears to be communicated to the black client. Statements such as these, whatever 
their motives, send subtle and unpleasant messages to black and other racialized 
Canadians. They suggest that the speaker, who represents the justice system to them, 
believes persons who are not white are outsiders whose rights to belong to the 
Canadian community must be established. Equally troubling, both lawyers implied 
that citizenship is, in some unexplained way, relevant to bail decisions. 

These studies leave no doubt that lawyers, judges, or justices of the peace regularly 
refer to the supposed "foreignness" of accused persons from racialized communities 



In most cases, a transcript of the bail hearing was filed as part of an application for review or variation of the decision. 
We added information about each accused, the offence charged, the outcome of the original hearing, the result of the 
application, any references to place of birth/origin, citizenship, immigration status, or other indication of foreignness. 
If such references occurred, we also noted whether the crown attomey, defence or duty counsel, or bail justice made 
them. 

We describe as "Asian" accused persons whom the Metropolitan Toronto police had classified as "yellow." We describe 
as "South Asian" accused persons whom the police had classified as "brown." 



Court Dynamics 227 

in irrelevant or inappropriate ways. Why are these references made']' What are their 
underlying purposes? 

Explanations of references to foreignness 

The Commission's research discloses three basic patterns, which we describe as "bad 
apple," "hidden agenda" and "apparently benign" uses of foreignness: 

• "Bad apple" cases involve references to an accused person's foreignness that are 
obviously hostile, suggesting bias, bigotry or plain stupidity. We found the most 
blatant examples of this problem in the reasons for sentence given by a few 
judges. 

"Hidden agenda" uses of foreignness are more subtle and mostly appear in 
crown attorneys' submissions or questions, although they may also be used by 
defence counsel. In these cases, lawyers refer to foreignness in hopes of 
prompting an adverse reaction to an individual on the part of a judge, jury or 
justice of the peace. 

• "Apparently benign" references to foreignness seem sympathetic to an accused 
person and are generally intended to justify a favourable outcome. They may be 
made by judges, justices of the peace or crown attorneys, but are mostly found 
in the submissions and questions of defence or duty counsel. 

"Bad apple" cases 

Blatantly hostile references to foreignness or ethnicity and other racist comments 
made by a judge do great damage to public confidence in the criminal justice 
system. More than any other legal professionals, judges represent the criminal 
justice system to the wider public and epitomize its values. When a judge speaks of 
a racialized person as different and unequal to a "real," "proper," "ordinary" or 
"white" Canadian, the comment threatens the integrity of the entire criminal justice 
system. 

Three examples, drawn from transcripts made available to the Commission, illustrate 
comments likely to have this effect. In the first two examples the Commission has 
no evidence about what provoked the judge's remarks. The third example shows the 
judge reacting to a crown attomey's apparently innocuous reference to the offender's 
country of birth. 

Example A 

The Court: It is said on behalf of one of the accused that there are no 
aggravating factors to be considered. I respectfully disagree. A sexual assault 
itself, tlie sexual nature of it, is a very aggravating factor. Three male persons 
overpowered the victim. They did so at night. They did it to a stranger and not 
one of their own, and when I say one of their own, somebody they knew or a 
member of the - or a person who was a person of the group of the ethnic origin 
of both the accused.^ (emphasis added) 



228 EXAMINING PRACTICES 

In this shocking example, the judge clearly suggests that ethnicity matters to 
seriousness of the crime, and hence to the sentence. It is hard to know, however, 
exactly what he had in mind. Does the judge mean that the sexual assault would 
have been less serious if the men had preyed on a woman of their own ethnicity? Or 
is he saying that sexual assaults of women who belong to that particular etlmic 
group are generally less serious than sexual assaults of women of other ethnicities? 
Either interpretation is strange, both suggest that an expUcitly racist criterion 
influenced the judge's sentencing decision. 

Example B 

The Court; In Toronto, in these courtrooms, sometimes I send yoimg men from 
Vietnam to jail rather severely on offences. They\e been in Canada a short 
time, thevAe been in Canada a year or two or three, and I have to work out a 
kind of sentence that appears to ha\e no bias. We're supposed to treat ever\'one 
in front of us the same way. Again and again I have to lay out - thankfully not 
again and again - but often I ha-\'e to lay out sentences trying to make it clear in 
the circumstances of recent immigrants' arrival into Canada, on a charge of 
tlu^eatening or extortion, that's sometimes connected with Vietnamese gangs and 
sometimes with not too much e\idence in front of me on a sentencing hearing. I 
lay out some severe sentences that perhaps wouldn't apply in the same set of 
facts with someone who'd been in Canada 20 or 30 years. ^ 

Again, the judge's comment is shocking. Does he really mean that offenders who 
have recently immigrated from Vietnam should be sentenced more harshly than 
other offenders? Such a sentencing principle could not possibly be lawful, but 
appears to be exactly what the judge is saying. 

Example C 

An offender with a prior conviction for "possession of burglar's tools" was charged 
and convicted after the theft of four hub caps from a car. He had moved to Canada 
at age six, 13 years before the incident that had brought him before the court. His 
lawyer had not brought this fact out during the trial, because he "thought it was 
irrelevant." But the crown attorney, while proposing jointly with defence counsel 
that the offender be fined and placed on probation rather than incarcerated, 
mentioned that the defendant was bom in China. The judge seized on this passing 
reference to justify a prison sentence: 

The Court: The most recent report I had [about criminal proceedings in China] 
was of a gentleman convicted in Beijing for putting white wine in the mai tai 
bottles and selling it. You know what the penalty he received was. Prostitution 
among other crimes have been similarly punished. So perhaps Mr. Ho's at the 
stage where he'll have to learn that even our society is not quite as weak as he 
thinks it is .... 

He's fr-om China, I understand that, but it is still Canada .... People have to obey 
the law .... 



Court Dynamics 229 



(TO rHK DEFENDANT]: You comc from Canton, you were bom tliere :md you've 
lived long enough to know what tlie law is like there. |In] tlie most recent 
reported case that I've found ... a gentleman put white wine in tlie mai tai 
bottles and sold it as mai tai. Tlie penalty tliat he received was that of execution 
by a bullet in the back of the neck. So, you know what tlie rules are there, and 
I'm sure that you're tliinking that you've come to a very soft society and will 
just get a slap on tlie wrist. Now, we don't deal with criminals in the same way, 
but you've still got to be dealt with as a criminal because tliat's what you cire .... 

You've brought dishonour on your father's name and you know the cniellest 

form of oatli in China You have got to learn, sir, tliat tliis is a country where 

the laws must be obeyed. You will be given credit for the time \'ou spent in 
pre-trial custody, namely six days ... You will be sentenced to a period of 
incarceration of nine days.' 

It is obvious from these comments that the accused, who had grown up in Canada, 
was sentenced to jail because he was presumed to be foreign. Indeed the judge 
explicitly used this presumed foreignness to justify disregarding the sentence 
proposed by the crown attorney and defence counsel. While judges are not required 
to accept joint sentencing submissions, they are expected to take them seriously.'" 
Generally, judges accept such sentencing proposals unless they believe a submission 
overlooks an important fact about the crime or the accused. Based on the judge's 
remarks, it appears that he considered the accused's presumed foreignness a factor 
that justifies a more severe sentence than normal. 

Responses to the Commission surveys, and experiences recounted during 
consultations with lawyers, confirm that a small minority of judges are known to be 
what we term "bad apples." We were told repeatedly that indications of presumed 
foreignness such as race, culture, colour and country of origin routinely result in 
adverse comments or decisions by these judges. 

• A duty counsel who participated in a Commission focus group said: 

"I've had problems witli one particular judge on a number of occasions. For 
example, 1 had a young Vietnamese client v/ho was charged with tlieft. The 
judge proceeded to comment that he had read in a New York paper how 
Vietnamese gangs were taking over the su-eets. There wasn't a suggestion tliat 
this young person was in a gang, or that he was a member of a Vietnamese 
gang, or tliat he came from New York ... This judge makes comments like that 
quite frequently." 

• Two crown attorneys who responded to the Commission's surveys stated: 

"As a woman and a member of a religious minority ... I have experienced some 
very glaring examples of overt racism and sexism from judges .... But these 
individuals are in a minority; most people are very aware of the special needs of 
minority persons and are not racist. Most racist behaviour, unfortunately, stems 
from the bench." 



230 EXAMINING PRACTICES 



"Judicial conduct needs to be better scrutinized. Where judges or justices of the 
peace make inappropriate comments, etc., the matter should be dealt with. At 
present, altliough certain individuals are notorious, notliing is done by the 
system. By tolerating their behaviour, it is condoned, continues and increases." 

Defence counsel who responded to the Commission survey stated: 

"Most criminal defence lawyers know of judges who have a reputation for 
holding racist views, and being biased against certain groups (Jews, blacks, etc.) 
.... If you have a non-white accused, you may do everything to avoid a 
particular judge, or to work out a joint submission with a crown on a plea or be 
careful to preserve avenues of appeal on a trial." 

"Most judges do not see colour but some do. Get rid of the bigots!" 

"The most overtly racist judge in Ontario is Judge X. He should be told to stop 
or be fired. Most judges want to do tlie right thing, but they don't always know 
how." 

The significance of racist remarks made by judges in court, even if infrequent, 
carmot be over-emphasized. While many people find such remarks offensive, 
racialized persons who experience or hear about them may feel outrage and shock, a 
deep sense of injury and, sometimes, fear. They tell their friends, families, 
colleagues and neighbours about what happened. Stories circulate quickly and gain 
force as they are told and retold. 

This classic human response highlights two important points. First, though members 
of racialized communities may generally believe that coixrts, like other social 
institutions, are systemically racist, they do not expect to encounter explicit racism 
in an Ontario courtroom. They relate their experiences, which are then circulated 
within the community, precisely because explicitly racist behaviour is not supposed 
to occur in court. In effect, the stark contrast between expecting fair treatment and 
experiencing a racist remark causes such judicial comments to have a profound and 
pervasive impact. 

Second, it is not so much the frequency of racist incidents in courts as the criminal 
justice system's reaction - or lack of reaction - that sustains perceptions of systemic 
racism. Few Ontarians believe that all judges routinely make explicitly racist 
comments in open court. But many are concerned that the criminal justice system 
seems to accept or tolerate such behaviour when it occurs. 

People may conclude that the court system accepts explicit racism in its operations 
when no public reaction to racist remarks occurs. They may believe the system 
tolerates explicit racism if lawyers or judges suggest such incidents are so rare they 
should be ignored. Perhaps some judges privately attempt to speak to their offending 
colleagues, and lawyers likely develop -strategies for minimizing the harm that 
judges with racist views might do. Unfortunately, however, members of the wider 



Court Dynamics 231 

community have no means of knowing about private responses and successful 
avoidance strategies. Instead, they experience the justice system as denying or 
disregarding, and hence tolerating, inexcusable conduct. 

One problem is that the criminal justice system's response to judicial misconduct 
relies entirely on complaints. Unless a formal complaint is filed with a judicial 
council, even a blatantly racist act elicits no institutional response. Indeed, no such 
complaint was filed in any of the three examples cited above. It is not sufficient 
simply to refer to the existence of a complaints process when such conduct is 
allowed to continue. The failure of the victim of a racist act to complain does not 
end the problem, since the act reflects badly upon all those within the criminal 
justice system - no matter how many are acting with faimess, diligence and 
integrity - as long as it is unopposed. 

Commission consultations convinced us that the system's perceived failure to react 
to explicit racism in the courts has a devastating impact on public confidence. No 
right-thinking member of the bar or bench condones or excuses judges making 
racist, bigoted or biased remarks in court. However, the criminal justice system must 
have a process for demonstrating publicly that racism will not be tolerated wherever 
on whenever it occurs. 

Such a process must have three main elements, all of which must be widely 
publicized within the community. These elements are standards of judicial 
behaviour; mechanisms to report judges who fail to meet the expectations; and 
effective procedures for responding to inappropriate judicial conduct. 

For some time, the court system has had procedures to deal with individual 
complaints about provincial and general division judges, but these procedures are 
not well known. For example, the Commission's population survey asked white, 
black and Chinese residents of Metro Toronto if they had ever heard of "the 
Canadian or Ontario Judicial Council that investigates complaints against judges." 
Responses show that less than half of white (44%) and black (45%) residents, and 
only a fifth of Chinese (21%) residents even know that these complaints bodies 
exist* 

Recent reforms to the legislation governing provincial division judges, implemented 
partially in response to ongoing public complaints about inappropriate conduct by 
some judges, may improve public confidence in the court system. These changes 
empower the chief judge of the provincial division, with the approval of the Ontario 
Judicial Council, to establish and publicize standards of judicial conduct and 



Awareness of complaints mechanisms concerning the pohce was considerably higher among all three groups: 71% of 
white respondents, 62% of black respondents and 39% of Chinese respondents report having heard of "the Public 
Complaints Commission that investigates complaints again.st the police in Metro Toronto." A high proportion of white 
respondents (71%), but not black (42%) or Chinese (29%), report awareness of the Law Society of Upper Canada, which 
handles complaints about lawyers. 



232 EXAMINING PRACTICES 

appraise performance." One of the stated goals of the standards is "ensuring judges' 
conduct is consistent with the respect accorded to them." Another is "enhancing 
equality and sense of inclusion in the justice system."'^ To the extent that action 
based on these provisions informs the public of the standards expected of judges, 
they should contribute significantly to public confidence.* 

Public evidence that in practice the system upholds its standards is also 
fundamentally important. Again, recent changes in the procedures for handling 
complaints against provincial division judges are a considerable improvement. In 
particular, the new system significantly expands lay membership of the Ontario 
Judicial Council. It also mandates the Council to publicize widely information about 
itself and the complaints procedure, and to assist those who need help with written 
complaints. The Council is responsible for overcoming cultural and linguistic 
barriers that might otherwise preclude potential complaints. ^ Full implementation of 
the new system should enhance public confidence that users' complaints about 
provincial division judges will be taken seriously. 

We are concerned, however, that the existing complaints systems may be inadequate 
to deal with even explicitly racist judicial conduct. These systems rely upon the 
offended person or a third party to file a written complaint. Defence counsel may 
view filing a complaint on behalf of a client as time-consuming and potentially 
jeopardizing future cases before the judge in question and, possibly, some of the 
judge's colleagues. Crown attomeys may well have similar views. Other judges may 
be the last to hear of problems and, in any event, may be unwilling to file a 
complaint against a colleague. Accused persons may view a judge's racist comments 
as being low on the scale of problems they face, and their court experience may 
leave them too intimidated to challenge a judge's conduct. 

Nevertheless, it is crucial to the integrity of the criminal justice system that every 
racist act by a judge be taken seriously. An adversary system often leaves one side 
or the other unhappy with interim rulings, the adjudication of guilt and any 
sentence. A "loss" may generate a feeling of unfairness or suspicion of favour to the 
other side. Indeed, the vast majority of complaints about judges relate to perceived 
errors (as opposed to misconduct) for which the proper remedy is an appeal. 

However, racist (as well as sexist) conduct falls in a different category. The inherent 
threat to the integrity of the criminal justice system reported in such allegations 
demands a more welcoming and proactive approach. A model more related to 
human rights legislation is desirable. An office should be available to investigate 



Draft standards have been circulated for commentary. 

The amendments to the Courts of Justice Act also create statutory procedures for investigating ajid deciding on 
complaints (ss.51.3-51.6), increase the range of dispositions available when a complaint is upheld (ss.51.6 and 51.8), 
and require the chief judge of the Provincial Division to establish (and the Judicial Council to approve) a plan of 
continuing education forjudges to maintain and develop professional competence, social awareness and personal growth 
(s.51.10). 



Court Dynamics 233 

allegations of racist conduct on the part of judges and lawyers in order to determine 
whether a formal complaint should be filed with the Canadian or Ontario Judicial 
Council or the Law Society of Upper Canada. The parties directly affected, other 
obser\'ers or even other members of the community should be able to initiate such 
investigations. 

The public should be informed that complaints may be filed anonymously or 
confidentially As our examples demonstrate, an investigation may require no more 
than an examination of the transcript or listening to a tape of the proceedings. 
Where there are potential disputes of fact, however, anonymous complaints would 
have to be dismissed. In the case of confidential complaints, the person initiating the 
process should have the option of personally filing the complaint with the 
appropriate body (thereby foregoing confidentiality) or having the investigation 
terminated without such a formal complaint. 

When judges make racist comments in open court, the public might wonder what 
they say m private to their colleagues or to others. The vast majority of judges who 
do not make or condone such racist comments should exert peer pressure on their 
offending colleagues, wherever possible, to make such conduct simply unacceptable. 
The same applies to lawyers. Indeed, it would be desirable for the Law Society of 
Upper Canada to establish an ethical obligation, together with practical guidelines, 
to govern lawyers' conduct when they observe racist acts. 

Also, the Ministry of the Attorney General should establish similar guidelines for 
other court employees. The basic principle is that no participant in the criminal 
justice system should tolerate misconduct on the part of other participants that 
damages the integrity of that system. 

7.1 The Commission recommends that - 

a) the Law Society of Upper Canada establish a complaints office where 
anonymous or confidential complaints about racist conduct by judges or 
lawyers may be filed. 

b) this office informally investigate such complaints and, where they are 
confirmed, file a formal complaint with the Ontario or Canadian Judicial 
Council in the case of a judge, or initiate disciplinary proceedings in the case of 
a lawyer. 

c) the confidentiality of the complainant be protected. When a factual dispute 
arises the complainant should be advised that further processing of the 
complaint requires filing it directly with the appropriate body, 

d) lawyers be under an ethical obligation to report to the complaints office any 
racist conduct they observe on the part of a judge, lawyer, other officer or 
employee of the courts. 

e) all other officers and employees of the courts also be encouraged to report 
any racist conduct to the complaints office. 



234 EXAMINING PRACTICES 

7.2 The Commission recommends that the Law Society widely publish 
information about itself and the complaints mechanism, including information 
about how to obtain assistance in making complaints. In providing such 
information, the Law Society should strive to eliminate cultural and linguistic 
barriers and, where necessary, help members of the public in preparing formal 
complaints. 

7.3 The Commission recommends that - 

a) the Law Society of Upper Canada establish an ethical obligation, together 
with practical guidelines, to govern lawyers' conduct when they observe racist 
acts. 

b) judges and lawyers take every available opportunity to counsel any 
colleagues who make racist comments, even outside the courtroom, that such 
statements are unacceptable and reflect badly on the Ontario criminal justice 
system. 

"Hidden agenda" cases 

Some uses of "foreigrmess" in courts reflect a more subtle motive than the explicitly 
racist examples above. In these cases, lawyers draw attention to a person's (often 
presumed) foreignness in hopes of eliciting an adverse reaction to the individual 
from a judge, jury or justice of the peace. These "hidden agenda" references to 
foreignness are typically used by crown attorneys about accused persons, or 
sometimes about witnesses. 

Lawyers consulted by the Commission said this type of reference to foreignness is 
much more common than what we term "bad apple" cases, and is also harder to 
control. Crown attorneys and defence counsel who use foreignness in this way are 
not likely to admit it, they point out, nor are many judges or justices of the peace 
likely to talk about these attempts to manipulate them. Sometimes the "hidden 
agenda" is unmistakeable, however, as a duty counsel explained during a 
Commission focus group; 

"We haA'e all experienced the same scenario - anyone who has had any length 
of experience in the criminal justice system knows about it. For example, 
Jamaican males who are landed immigrants are presumed to have a certain 
lifestyle. They are such an easy target for a crown attorney. The crown attorney 
is aware that the [justice] making a decision, who they want to [obtain] a 
detention order from, has these values of nuclear family - support, obligation, 
stability [inj a particular residence for a long period of time. 

"What the crown can do is simply exploit that factor. If the person is sending 
money to Jamaica to support children or other family, immediately the question 
arises: 'where is your money coming from?' If they don't send money to support 
relatives or family, then immediately the question is 'why not? Where is your 
moral responsibility to your family?' The question is meant to suggest that the 
accused lacks something in his character that the court should be concerned 
about." 



Court Dynamics 235 



Another duty counsel, also commenting on the uses of "Jamaican" ethnicity by some 
crown attorneys, spoke of other adverse interpretations: 

"The crown will ask tilings like 'have you got ;iny kids?", and the accused may 
have kids who don't ha\ e tlie same motlier. Tlien tlie crown may use the term 
■bab\ mother" and you watch tlie JP sneer. Tliere is a perception tliat this guy is 
running a harem and is totally irresponsible." 

"The other perception is that people who have kids back in Jamaica and are 
sending money home are a flight risk. The crown will jump to the conclusion 
that the accused is going to go back to his kids and so seek detention." 

Duty counsel also talked about crown attorneys who draw attention to foreignness 
through gestures: 

■"Some crown attorneys display apparent disgust over responses from someone 
who has a cultiiral accent or for whom English is not the first language. If they 
don't get tlie response they want quickly, tiiey throw up tlieir hands to indicate, 
obviously, to tlie justice of peace that this person is not responding to tlie crown 
attorney's questions Uaithfully." 

Occasionally judges recognize and even expose attempts to pursue a hidden agenda 
in court. Duty counsel repoiled these two examples of such judicial reactions: 

"I was doing a sentencing ... for a Somalian man on a basic shoplift [offence]. 
The crown said that this person was new to the country and had to learn what 
our laws are about. The judge jumped on it and asked the crown what was 
meant by it. Tlie judge said it doesn't matter if someone has been in this 
country five months or five years or five generations; they should all be treated 
the same." 

"I once represented a Chinese woman. The crown became angry when the 
accused would not look her straight in tlie eyes when being cross-examined. The 
crown inquired if it was a cultural Oiing .... Fortunately tlie presiding judge had 
a better understanding of the accused's racial background, including her 
mannerisms." 

More frequently, however, these uses of foreignness seem to pass unchallenged. One 
duty counsel described frustration at her inability to respond effectively to crown 
attorneys' inappropriate references to foreignness: 

"You really wish you could stand up and say, 'Excuse me. Madam Crown, tell 
me what relevance does that have to the show cause hearing. Are you 
suggesting, perhaps, that cultural or racial differences arc relevant to the primary 
or secondary' grounds |for detaining someone before trial]?' 1 have to think 
about why I can't - or why I haven't - said that: it enrages me because 1 do 
think those comments are clear-ait racism." 



236 EXAMINING PRACTICES 

The lawyer seemed to feel that the intervention she would hke to make would be 
perceived as inappropriate. The Commission's view is that such an intervention is 
not only appropriate but should be an obligation for all counsel who encounter 
irrelevant references to race in the courtroom. 

At first glance, these "hidden agenda" uses of foreignness might appear driven by 
pure racial bias, indicating more "bad apples." But such a diagnosis likely overlooks 
the real motivation. In most instances of what we call hidden agenda, the true 
function of comments about foreignness is to help lawyers win cases. In effect, a 
crown attorney assumes, rightly or wrongly, that the justice is more likely to decide 
against the accused if the accused is portrayed as "foreign." Whatever the specific 
motivation or result, the comment is no less racist (see Chapter 3). 

Such a portrayal of a black or other, racialized accused person is one of many ways 
of suggesting to the court that the accused is not "one of us." References to other 
attributes, such as lifestyle, unemployment or welfare status, transience or where the 
accused person lives may have much the same effect. Whatever the attributes 
chosen, the point of referring to them is to distance the decision-maker, as well as 
the speaker, from his or her common humanity with the accused person. 

Once this distance is created, the element of empathy that is so crucial to the 
exercise of discretion is likely absent. If the judge or justice of the peace does not 
feel empathy for an accused person, the crown attomey would have achieved the 
underlying goal in raising these factors. As a defence counsel who responded to the 
Commission's survey stated, "Judges are less likely to believe non-white participants 
in the criminal justice system because the empathy and identification factors are 
missing." 

If crown attorneys think their objective is to win cases, it is scarcely surprising if 
they use every available tactic to increase their chances of success. Drawing 
attention to immigration status or other signs of foreignness of racialized accused 
persons may well be effective. For example, the Commission asked provincial 
division judges if judicial perceptions about racial minority immigrants adversely 
affect racial minority accused. Half of the judges who answered this question 
indicate that perceptions about racial minority immigrants at least occasionally have 
adverse consequences for racial minority accused.* 

However, for Ontario crown attomeys to be motivated by notions of "winning" and 
"victory" is highly improper. Crown attomeys have strong professional and ethical 
obligations to ensure just results. Their task in the courtroom is to present the case 
for the state effectively, but always within the framework of a fair trial. It is a 
serious departure from this principle deliberately to introduce race in order to 



Percentages for recently appointed and longer-serving provincial division judges are opposite, i.e., 75% of recently 
appointed judges said at least occasionally and 25% said never, while 25% of longer-serving judges said occasionally 
and 75% said never. 



Court Dynamics 237 



prejudice an accused. In short, as the C.inadian Bar Association's Code of 
Professional Conduct states - 

... when engaged as a prosecutor, tlie lawyers prime duty is not to seek to 
convict, but to see that justice is done through a fair trial upon merits. The 
prosecutor exercises a public function involving much discretion and power, and 
must act fairly and dispassionately.'-' 

A crown attorney who responded to the Commission's survey described the demands 
and values of the role in this way: 

"... [a] crown counsel's role in [criminal] proceedings is that of a minister of 
justice. Tlie crown does not win or lose a case. Tlie crown's role is to prosecute 
charges where the evidence suggests that there is a reasonable basis for 
concluding that the accused is guilty of the offence and will be found guilty. 
The crown's duty is to put all relevant evidence, whether it be inculpatorv' or 
exculpatory, before tlie court, so tliat the court may determine if the accused is 
guilt\' of tlie offence charged." 

Presumably, crown attorneys who fully understand their responsibilities as 
"ministers of justice," and conduct themselves accordingly, refer to an accused 
person's immigration status only in the limited circumstances when it is relevant to 
the proceeding. Such crown attomeys would never refer to foreignness in order to 
distance a judge, justice of the peace or jury from an accused person. Conversely, 
we can only assume that crown attomeys who persist in exploiting foreignness in 
pursuit of a "hidden agenda" have a poor grasp of their job. 

In general, the current guidelines for crown attomeys appear adequate. The Crown 
Policy Manual reminds them to ensure that discriminatory stereotypes do not 
influence their decision-making, and wams them to beware of "institutionalized 
practices or policies that have an adverse effect on particular groups." No crown 
attorney who strives to meet these standards could possibly justify using references 
to foreignness simply to win a case. 

Guidelines alone do not guarantee integrity, however. As one crown attorney 
surveyed by the Commission notes, "any deceitful crown with a modicum of 
imagination can always conceal an improper motive behind an acceptable 
justification." Given the generally satisfactory policies and procedures in the Crown 
Policy Manual, the answer to this problem is not more guidelines, which could also 
be evaded. Instead, the emphasis should be on giving crown attomeys a well- 
grounded understanding of their responsibilities, and an effective appraisal system to 
evaluate performance. 

As suggested by the examples above, judges and justices of the peace have a vital 
role to play in discouraging "hidden agenda" references to foreignness, since they 
are usually the intended audience. They can show they are not influenced by such 
references. More importantly, they may publicly call to account any lawyer who 



238 EXAMINING PRACTICES 

unnecessarily draws attention to the foreignness of an accused person, victim or 
other witness. Opposing counsel also should be vigilant in insisting upon articulation 
of the relevance of such references where none is apparent. 

7.4 The Commission recommends that judges, justices of the peace and counsel 
adopt an approach of scrupulously identifying the relevance of any reference to 
race before it is introduced in court. 

"Apparently benign" uses of foreignness 

The Commission found that references to foreignness are sometimes used neutrally 
or in an attempt to portray accused persons favourably. Apparenriy neuttal 
references - such as simple descriptions of a person's place of birth or date of 
arrival in Canada - may be made by judges, crown attorneys or defence or duty 
counsel. Typically, defence or duty counsel have the strongest incentives to make 
favourable references, but crown attorneys and judges may also do so. 

Favourable references to foreignness might be used to - 

explain factors that might otherwise reflect badly on an accused person. For 
example, a lawyer may note a refugee claimant's to explain why the person has 
no Canadian work record. Sometimes the lawyer describes the individual's work 
record in the country of origin. 

reduce the damage from a previous hostile or negative reference to a person's 
foreignness. For example, a defence or duty counsel may supportively question 
an accused person about education or work in another country after a crown 
attorney used origin to porttay the accused negatively. 

• mitigate culpability by showing that an immigrant is unfamiliar with Canadian 
laws. For example, a lawyer may refer to different customs of the accused's 
country of origin to demonsttate that the person did not know that his or her 
conduct would be a criminal offence in Canada. 

mitigate a sentence by showing respectability. For example, a lawyer may refer 
to the accused's years in Canada to demonstrate a long crime-free history in this 
country. 

• highlight drastic consequences of a registered conviction for a non-citizen 
accused. A criminal conviction may, for example, result in delay or denial of 
landed immigrant status. To avoid these additional penalties, a lawyer may refer 
to the accused's status and propose a discharge. 

Benign uses of foreignness may be acceptable in some circumstances, especially if 
they help avoid imposing additional penalties on non-citizens that would not be 
imposed on Canadians convicted of tlie same offences. ''' But obvious dangers exist 
of misuse or conveying the impression that "foreignness" is generally relevant to 
court proceedings. Even though reference to race may appear neutral, the accused 
may still ask: "why are they talking about my race?" Again, the relevance of any 



Court Dynamics 239 



reference to race should be scrupulously identified before permitting it to be used in 
court. 

Experiences of exclusion 

The experience of being excluded from court proceedings is a significant reason 
why black and other racialized persons report lack of confidence in the criminal 
justice system Two main problems are identified. First, the speed, complex 
language and often mystifying procedures of the courts mean that even accused 
persons who speak fluent English (or French in a trial conducted in French) often 
feel that they are not really participating in proceedings that may have profound 
consequences for them. Those who rely on interpreters feel even more excluded. 
The second problem is that the absence of racialized persons in positions of 
authority and on juries in Ontario courts conveys powerful and negative images of 
the criminal justice system as a "white" and exclusionary institution. 

Court proceedings 

A 1990 report on community perceptions of the justice system found that - 

... the majority of racial minorities (and others, one presumes) lack important 
knowledge about tlieir civil and legal rights. They do not understand court and 
legal procedures, the nature of tlie laws themselves, how to find legal counsel, 
the role of community legal clinics and many other aspects of service delivery.... 
While this problem is particularly acute for the youth, and especially Black 
youtli, it applies to adult members of racial minority groups as well.'* 

Black, Aboriginal and other racialized Ontarians described the court process to the 
Commission as bewildering. They reported feeling confused by the procedures, 
shocked by the rapid pace, mystified by the language and intimidated by the formal 
rituals of courts. 

Few accused from these communities felt adequately prepared for the experience. 
Many said they had been given almost no idea of their roles or responsibilities. 
Almost all reported a stark contrast between the ease with which justice 
professionals functioned in the courtroom and their own lack of familiarity with the 
process, which created a profound sense of being excluded. 

These experiences crossed age and gender boundaries, and were shared by victims 
and other witnesses, as well as accused persons. Although factors such as recent 
immigration, lack of English or French language skills, or low levels of educational 
achievement tended to intensify the sense of disadvantage, they do not entirely 
account for it. A large part of the problem lies in the organization and 
administration of court proceedings themselves. 

For example, even a highly educated accused person whose first language is English 
may find it difficult to understand what is being asked when a court official in a 
busy court hurriedly recites: 



240 EXAMINING PRACTICES 



You-have-an-option-to-elect-to-be-tried-by-a-provincial-court-judge-without-a- 

jury-and-vvithout-having-had-a-preliminar)'-inquir>'-or-you-may-elect-to-have-a- 

preliminar>'-inquiry-and-to-be-tried-by-a-court-composed-of-a-judge-and-jun'-if- 

you-do-not-elect-now-you-shall-be-deemed-to-have-elected-to-have-a- 

preliminary-inquiry-and-to-be-tried-by-a-courl-composed-of-a-judge-and-jury- 

how-do-you-elect-to-be-tried?' 

Even an accused person who has been forewarned of this ritual of trial election and 
its consequences is unlikely to feel he or she is actively participating in the 
exchange. Of course, white people may also feel confused and intimidated in the 
courtroom. Since expertise, formality and legal ritual are built into the criminal 
process, most people, regardless of race, are likely to find the proceedings at best 
difficult to understand; at worst, traumatic. 

As a Nova Scotia judge notes in a recent essay, "most accused persons [and victims 
or other witnesses] do not know what is going on in the courtroom except for the 
fact that they are forced to be there." The judge adds; 

That which is commonplace to tlie judge is often foreign and terrifying to 
accused persons. They do not understand why they camiot state what someone 
told them or why lawyers object or raise questions of admissibility or relevance. 
Many accused are terrified by just being in the middle of an alien legal world 
and they are fearful of what will happen ....'* 

Many white and racialized persons may experience the court system in similar ways 
in that the main sources of fear and intimidation are the same: inequalities of 
knowledge, power and authority between themselves and those who administer 
justice. But there may also be important differences in experiences of the court 
system. Factors such as unfamiliarity with Canadian cultural norms and institutions 
or linguistic barriers, for example, may intensify the apprehension felt by some 
racialized persons. In addition, many racialized persons feel profoundly 
disadvantaged in courts because of their previous experiences with what the federal 
Government has referred to as the "'silent' discrimination or 'polite prejudice' in our 
institutions and in daily Canadian life."'^ 

Constant exposure to the consequences of what the Ontario Court of Appeal terms 
the "racism, and in particular, the anti-black racism [that] is part of our community's 
psyche"'* creates a sense of vulnerability in dealings with powerful, alien and 
seemingly "white" institutions, such as courts. This sense of vulnerability to racial 
injustice may exist even amongst racialized persons who have not personally had 



s.536(2) of the Criminal Code requires this choice to be put to all accused except those whose charges must, by law, 
be tried in a specified division of the Ontario Court of Justice. While the courts may recognize that this question is 
difficult for an accused person to understand, they generally assume that an accused represented by counsel understands 
the nature and implications of an elecUon. See generally: R. v Mathesoti, (1979) 50 C.C.C. (2d) 92 (Man. C.A); 
Korponey v. Attorney-General of Canada (1982) 65 C.C.C (2d) 65 (S.C.C); R. v. Bennett, (1993) 83 C C.C. (3d) 50 
(Ont a., Prov. Div). 



Court Dynamics 241 



negative experiences in courts. It arises and is sustained because the court system is 
seen as a part of a systemically racist society. 

Current demands on courts leave little scope for a day-to-day response to this 
problem, especially in busy provincial division courts. We understand, for example, 
that some courts that process initial appearances may face lists of up to 500 charges, 
and that some bail courts process more than 100 cases per day. In these courts at 
least, it is scarcely surprising if the primary concern of judges, justices and lawyers 
is to get through the list. Equally understandable is the dehumanized feeling that 
accused persons, victims or other witnesses may experience when they are caught up 
in a system that is too often driven by expediency. 

By far the most effective response to this problem is greater restraint in the use of 
scarce criminal justice resources. As policy-makers and judges have noted 
repeatedly, many social problems and conflicts that are treated as criminal offences 
may be handled more effectively by other social institutions.'^ If many of the 
relatively trivial charges now clogging the machinery of justice were removed from 
the court system, the remaining serious cases could be managed with greater dignity 
and respect for everyone involved. Such a change would significantly improve both 
the appearance and the practice of justice in the courts. 

In Chapter 6 the Commission endorses the recent expansion of programs to divert 
charges away from the criminal justice system and recommends using them to the 
fullest extent possible. Our findings about the dynamics of Ontario's court system 
reinforce this recommendation. 

Courtworker programs of information and support for accused persons and 
victims/witnesses (see Chapter 6) are another mechanism for improving 
comprehension of court proceedings. Courtworkers may answer general questions 
that a lawyer is too busy to address, counsel clients and prepare them for court 
hearings, refer them to community agencies, and ensure that relevant infonnation is 
brought to the attention of appropriate officials. 

The first Native courtworker programs in Ontario began in the 1960s as experiments 
in three urban areas; Toronto, Kenora and Thunder Bay. * They were designed to 
assist and support Aboriginal persons who appeared to be particularly disadvantaged 
in the criminal courts. There were serious concerns that Aboriginal people tended to 
plead guilty even if a defence was available, and that mitigating circumstances were 
not always drawn to the court's attention. 

The contemporary Native Courtworker Program is formally described as - 



Onginally, courtworker programs were funded by municipal and provincial agencies. Federal funding began in 1969, 
and the Ministry of the Attorney General became the provincial partner in 1977. 



242 EXAMINING PRACTICES 

... a program of counselling other than [on] matters of law delivered ... to 
Natives charged with an offence imder any federal or provincial statute or 
municipal by-law. in order that such persons may receive information about 
court procedures, be appraised of their rights, and be referred to legal aid or 
other resources.^" 

While activities vary to some extent at different Indian Friendship Centres (co- 
sponsors of the programs), their most important activities are explaining legal aid, 
and referring chents to legal aid offices and lawyers.' Other out-of-court activities 
include contacting family members, counselling, and promoting cultural awareness. 
In-court activities include sensitizing court officials to Native concerns, providing 
input into pre-sentence reports, or speaking to sentence. 

Native courtworkers whom we met acknowledged their considerable formal and 
informal role as cultural interpreters: As their presence becomes more familiar to 
court personnel, they are increasingly asked to facilitate cross-cultural 
communication. Evaluations conducted in Ontario and elsewhere"' consistently 
report satisfaction among cnminal justice professionals with Native courtworker 
programs. 

In 1993 a pilot project to provide courtworker services to black accused and their 
families began at four Metro Toronto courts. A recent extemal evaluation of the 
African Canadian Court Worker Program found that the program met important 
needs and could accomplish even more if its future were secure. The review 
recommended stable funding "until the African Canadian community is foimd to be 
free of the barriers and vulnerability that formed their view of unequal treatment. "^^ 

Constant uncertainty about continued funding hampers effective planning and 
efficient delivery of courtworker services. Recent correspondence between the 
Ministry of the Attorney General and the organization that nxns the African 
Canadian Court Worker Program is vague on the Government's commitment to 
adequate funding for such programs. Rather than curtail existing programs, the 
Govemment should expand them and extend such services to other communities. 
During the early stages of developing such programs, opportunities should be 
provided for sharing information and experiences, perhaps through conferences or 
workshops held by the Ministry. 

Court worker services for youths are particularly important. Young people are often 
even more bewildered than adults by the court system and are likely to benefit 
considerably from the advice and support of courtworker services. They may also be 
disadvantaged relative to adults in practical matters such as arranging employment 
or accommodation, or gaining entry to programs likely to be approved by the court. 



One evaluation indicated that Courtworkers spent 55 to 60 percent of their time in court ("An Evaluation of the [Ontario) 
Native Courtworker Program (Criminal)," SPR Associates, May 12, 1989 (manuscript on file), p. 69). Frequently in 
remote areas, not enough defence lawyers are prepared to do criminal work on circuit. 



Court Dynamics 243 

By assisting young people to make such arrangements, courtvvorker ser\'ices could 
fulfil an miportant need. 

7.5 The Commission recommends that - 

a) existing couitworker programs be maintained and guaranteed funding by 
the Ministry of the Attorney General. 

b) additional courtworker programs be established, particularly those offering 
semces to youth. 

Interpreter services 

The distinctive language of court proceedings is often too complex even for persons 
whose English (or French) linguistic skills are functional in everyday life. Persons 
without a working knowledge of English or French are particularly likely to feel 
vulnerable to an authority system they see as incomprehensible. 

The Canadian Bill of Rights, passed in 1960, expressly recognized that people 
involved in court proceedings are entitled to interpreter assistance, but mentioned 
neither funding nor the quality of services. The right to interpreter assistance was 
also mcluded among the fundamental rights guaranteed by the Canadian Charier of 
Rights and Freedoms in 1982, but again funding and quality are not specifically 
mentioned. With an important 1994 decision, the Supreme Court of Canada has now 
given explicit direction on an accused person's right to interpreter assistance during 
criminal court proceedings. '' 

A seven-member court decided unanimously that whenever a court proceeding 
involves a vital interest of an accused person who does not "understand or speak the 
language" of the proceeding, she or he is entitled to interpretation that is continuous, 
precise, impartial, competent and contemporaneous. In explaining why the Charter 
requires court systems to provide interpretation services that meet these standards. 
Chief Justice Antonio Lamer stated: 

It is clear tliat the right to the assistance of an interpreter of an accused who 
cannot communicate or be understood for language reasons is based on the 
fundamental notion tliat no person should be subject to a Kafkaesque trial which 
may result in loss of liberty. An accused has the right to know in full detail, and 
contemporaneously, what is taking place in the proceedings which will decide 
his or her fate. This is basic fairness. Even if a trial is objectively a model of 
fairness, if an accused operating under a language handicap is not given full and 
contemporaneous interpretation of the proceedings, he or she will not be able to 
assess this for him or herself The very legitimacy of the justice system in tlic 
eyes of those who are subject to it is dependent on their being able to 
comprehend and communicate in the language in which the proceedings arc 
taking place."'' 

Although Ontario has established a system of court interpretation, changes are 
needed to meet the standards required by the Supreme Court of Canada. We found 
that interpreters, as well as judges, lawyers and representatives of community 



244 EXAMINING PRACTICES 

agencies involved in criminal justice issues, have serious concerns about the 
guarantees of court interpreter competence, impartiality and accountability for 
mistakes. Delivery of interpreter services would be enhanced if judges and lawyers 
received more guidance on working with interpreters. 

Competence 

Ontario lacks a systematic program for training and accrediting court interpreters. 
Current accreditation involves preliminary tests of linguistic and memory skills 
administered by the Ministry of the Attomey General, followed by a two-day 
training workshop for those who pass the tests. At the end of the workshop, 
candidates are examined on the Ministry's Court Interpreters Handbook. Those who 
complete this test successfully are fully accredited for interpretation in court. Other 
Canadian provinces and some non-Canadian jurisdictions provide much more 
extensive academic and practical training for court interpreters, which appears 
highly successful.* 

Several interpreters who participated in the Commission's research think existing 
training for court interpretation is too superficial, and that the Ministry of the 
Attomey General's accreditation process should be more professional. We received 
many complaints that the process does not require a period of "shadowing," during 
which a trainee interpreter accompanies an experienced interpreter into various 
courts. Interpreters considered leaming court procedures and terminology as vital to 
the development of their competence and confidence in court. It is not required in 
Ontario, however, partly because the Ministry of the Attomey General does not want 
to deter potential interpreters who cannot afford to go through a lengthy and unpaid 
training process. 

Some interpreters also complained that the vital task of honing and maintaining 
practical skills after accreditation is entirely voluntary. One interpreter who was 
especially critical said his own professional development program is: "on my own 
time going to court, [and] listening and mentally translating what is going on. If 
there are words I'm not familiar with, I look them up." He is concemed, however, 
that the Ministry does not require, expect, or even encourage all accredited 
interpreters to do the same. 

Lawyers and judges who responded to the Commission's surveys remarked on what 
they perceive as the variable quality of court interpreting, and the lack of an 
effective system to ensure competence. Many made comments such as "some 
interpreters are excellent, most are adequate and some are abysmal" and "the quality 
of interpreters varies greatly and at times [is] quite inadequate." They called for 
better training, testing and screening of court interpreters. 



We were told of effective and well-developed academic programs for court interpreters in Alberta and British Columbia, 
as well as England, Norway, South Africa, Australia and the United States. Unfortunately, resource constraints prevented 
us from researching these programs in any depth. 



Court Dynamics 245 

The Ministry of the Attorney General should fund continuing education as well as 
initial programs, and interpreters should attend workshops as a condition of retaining 
accreditation. The Ministr>''s Court Interpretation Services Branch should conduct 
spot audits of court interpreters. Those providing inferior interpretation should be 
required to requalify for accreditation. 

In addition to questioning the interpreter system's capacity to ensure general 
linguistic competence, many people have serious concerns about the translation of 
highly sensitive testimony. Representatives of organizations that assist women who 
have been sexually assaulted or abused by a male family member raised this 
problem repeatedly. They maintained that, all too often, the only available court 
interpreter for testimony of these victim/witnesses is a man who has no training 
concerning violence against women, and may not even know the terminology a 
woman uses to describe such violence. 

Even worse, a male interpreter may attempt to impose his own value judgments. A 
submission from the Korean Canadian Women's Association echoed others in 
reporting - 

Many of our KCWA clients have often complained of, first, the Korean 
interpreters" lack of knowledge and/or their improper use of terminology and, 
second, tlieir unprofessional intrusiveness into the decision-making process of 
the client. At present almost all Korean interpreters are untrained realtors, 
businessmen or ministers, the majority of whom are males. Many have 
presumed to impose their biases and morals on many of our abused women 
clients by intimidating them into dismissing charges against an abusive 
husband. ^^ 

The Commission believes that competence and confidence in the court interpreter 
system would be considerably enhanced by reforming the accreditation, training and 
performance evaluation of interpreters. These reforms should be pursued in co- 
operation with the Ministry of Citizenship, Culture and Recreation, and the Ministry 
of Education and Training, as well as agencies and institutions providing 
interpretation services and training. 

7.6 The Commission recommends that the Ministry of the Attorney General - 

a) develop objective and consistent accreditation standards for interpretation 
and translation, which should be used to certify training programs for court 
interpreters. Such programs should include specific instruction on issues of 
violence against women, and a practicum funded by the Ministry in which 
trainee interpreters "shadow" experienced accredited interpreters in 
courtrooms for up to three months. 

b) fund translation of a glossary of legal terms and phrases in common court 
usage into the principal source languages used in Ontario. 



246 EXAMINING PRACTICES 

impartiality 

Canadian courts have generally insisted on impartiality in interpretation services. 
Parties to proceedings, relatives and friends of parties or persons close to the events 
giving rise to a criminal charge are typically viewed as inappropriate interpreters in 
criminal proceedings. Because some linguistic minority communities are small, 
however, in practice an accused person, victim or other witness often knows the 
court interpreter. In many cases, prior acquaintance does not matter and may be 
unavoidable. But in order to preserve the appearance of justice, an accused person, 
victim or other witness must ftilly understand the interpreter's role and be able to 
object to an interpreter whom he or she does not trust to be impartial. 

Equally important is that everyone in the courtroom understand that an interpreter is 
an impartial professional enabling communication, rather than an advocate or 
supporter of the accused person. Obviously, judges and lawyers are well placed to 
understand the interpreters' role, but others should also be clearly informed. 

7.7 The Commission recommends that whenever an interpreter is used, the trial 
judge or bail justice explain the role and expectations of an interpreter in open 
court. The judge or justice should - 

a) state that the interpreter is a neutral professional, employed by the court to 
translate what is being said. In jury trials, this explanation should be given in 
the presence of the jury. 

b) inform the accused person and any witness that he or she may apply to the 
presiding judicial officer to replace an interpreter whom he or she feels has a 
conflict of interest or may otherwise not be impartial; 

c) verify that the accused and the interpreter have had sufficient opportunity to 
ascertain mutual understanding; 

d) advise the accused person and the interpreter to alert the judge and request 
clarification if at any time either is unable to understand or hear what is being 
said; 

e) request that observers who have concerns about the quality of interpretation 
inform crown or defence counsel. 

Accountability for mistakes 

Well-trained, accredited interpreters whose work is facilitated by judges and lawyers 
are likely to provide high-quality interpretation, but they are not infallible. How are 
judicial authorities to know if an interpreter has made a significant communication 
error that affects the decision about the accused? 

The standard mechanism for identifying legal or factual errors in court proceedings 
is the official record of proceedings, which is documented by a court reporter and 
kept for at least six years.* In some courts the reporter repeats what is said in court 



Originally a regulation under the Provincial Courts Act (O. Reg. 60/83). When that legislation was replaced in 1984 by 
the Courts of Justice Act, s. 79 provided that, subject to approval by a chief justice or chief judge, the deputy attorney 
general could establish directions for their disposal. Directions issued in January 1990 (on file) allowed reporters, in most 



Court Dynamics 247 

into a microphone; in others the reporter maintains a contemporaneous paper record. 
WTiile court reporters may faithfully record the interpreters' English (or French) 
statements, neither method permits recording of testimony given in a language other 
than that of the court proceedings. Thus, if questions are later raised about the 
accuracy of the interpretation, the court system has no record of what an accused 
person or witness said in the source language. 

The criminal justice system generally treats the absence of a record of the original 
testimony given by an English or French-speaking person as a source of potentially 
serious injustice. An appellate court will almost always order a new trial if "there is 
a serious possibility" of error in a missing portion of the record.'^ However, the 
same standard is not applied to testimony in languages other than English or French, 
for which there is usually no record of the source language. 

This systemic barrier to equality in the criminal justice system must be removed. 

7.8 The Commission recommends that all court testimony and interpretation be 
audiotaped and retained as part of the official record of proceedings. 

Criminal justice personnel and effective interpretation 

Many interpreters say that judges, lawyers and justices of the peace do not always 
understand the general demands of court interpreting or how to communicate with 
witnesses through an interpreter. Participants in Commission focus groups 
complained of poor acoustics in courtrooms, and stated that interpreters are 
frequently treated as a nuisance if they interrupt the proceedings when they cannot 
hear what is being said. Some who had been asked to interpret languages they do 
not speak felt they were expected to "teach geography or history to the judge and 
others who have no understanding of languages spoken in different geographical 
areas of the same country." 

Interpreters also said some lawyers and judges have little grasp of the limitations 
inherent in communicating through interpreters. For example, interpreters are 
expected to translate what is said word by word, but in practice this type of 
translation may fail to convey the meaning accurately and effectively. Just as a 
lawyer may have to rephrase questions that a witness does not understand, an 
interpreter may need to use different language levels. As one interpreter explained: 

"Eighty percent of accused are not highly educated, so I have to use a basic 
language with them. It is sometimes difficult to translate legal language to tlic 
level the accused can understand." 

In other instances, word-by-word translation may be impossible. Interpreters who 
attended Commission focus groups explained: 



cases, to dispose of their tapes six years from the date of judgment 



248 EXAMINING PRACTICES 

"Emphatic languages may have no equivalents for some English words used in 
court. So you have to overcome tliis by using long descriptions. But it can often 
be expressed quite shortly in English." 

"While most of the time you can interpret word for word on the basic points, to 
convey tlie whole mearung properly, you have to translate it in a different way. 
The interpreter must feel able to say in court tliat she/lie cannot interpret a 
particular meaning word for word, but will have to take time to explain." 

Many interpreters find that judges or lawyers are unaware of this problem, and may 
be suspicious of what the interpreter is communicating. As one focus group 
participant noted, "if I take too long to interpret, the crown raises his eyebrows and 
clearly wonders if I am embellishing or not." 

Effective communication through an interpreter is unquestionably an important skill 
for judges, justices of the peace and lawyers to acquire. It is equally important that 
judges, lawyers and justices of the peace know how to facilitate interpreters' work in 
court proceedings. It is also important to understand cultural interpretation, the time 
required for interpretation, and when it should be used. 

The Ministry of the Attorney Gfeneral could help by preparing, in association with 
the Law Society of Upper Canada and interested community organizations, a manual 
of advice and procedures to explain the role of interpreters and advise how to work 
with them. 

7.9 The Commission recommends that judges, crown counsel, employed duty 
counsel and justices of the peace receive training in working with interpreters. 

Finally, the Commission's research unearthed a small but significant interpretation 
problem that is relatively easy to correct: statements in the source language are often 
inaudible to everyone except the person being assisted. Some spectators or non- 
excluded witnesses present in a court may not be able to understand court 
proceedings without the assistance of an interpreter. While such persons do not have 
a constitutional right to interpreter services in court, the principle of open court 
proceedings makes it desirable to ensure that interpretation is audible in the source 
language as well as the language of the court. * A further benefit of ensuring 
audibility is the potential for a spectator conversant in both languages to identify 
errors in the interpretation, perhaps by approaching a lawyer or court official during 
a break in proceedings. We suggest that court personnel adopt a flexible and 
constructive approach to criticisms of interpretation so they may take advantage of 
such informal monitoring. 

7.10 The Commission recommends that court personnel ensure that 
interpretation be audible to persons in the court. 



Obviously, anv private communication between an accused and counsel using an interpreter should not be audible to 
any other person. 



Court Dynamics 249 

The image of white justice 

One of the most frequently cited reasons for the sense of exclusion that racialized 
court users experience is the under-representation of persons from their communities 
among lawyers, judges, justices of the peace and jurors. Participants in Commission 
consultations spoke vividly of fears that white lawyers and decision-makers - even 
if well-intentioned - neither understand nor relate to the heritages, cultures and 
experiences of racialized persons. 

Under-representation of racialized persons among judges and 
lawyers 

We heard from many black and other racialized persons that images of white justice 
convey subtle messages that the court system lacks respect for individuals who are 
not white. The Commission was told repeatedly that under-representation of 
racialized persons among judges and lawyers is seen as reflecting assumptions that 
these Ontarians are less worthy of working as justice system professionals. As such, 
under-representation repeats and reinforces an unspoken message, that white skin is 
an indicator of competence. 

Over the last few years, courts have slowly begun to reflect the diversity of Ontario. 
But lawyers from racialized communities are often treated as if they are out of 
place. In these examples from Commission focus groups and surveys, lawyers from 
racialized groups were - 

• misidentified as accused persons: 

"I don't believe a police officer would ask me in court if I was the accused just 
to lower my self-esteem. I believe it is done unconsciously." 

"If you are [a] black lawyer and are representing someone and you are referred 
to as tlie accused or sent to the body of tlie court [while] you see white lawyers 
treated with courtesy and respect, it does something to your self-esteem ..." 

• misidentified as interpreters: 

"I am often mistaken [for] an interpreter and I am approached by defence 
counsel seeking my services wliile 1 am seated at the defence counsel's table or 
just outside the courtroom. Otlier than the defence counsel's client and/or 
witnesses, I am usually the only otlier person in the body of the coiulroom who 
is of tliat racial minority and wearing a suit." 

"Vcr\' often 1 am asked by court staff (white and non-white) and crown counsel 
whether 1 (brown-skinned) am an interpreter. 1 ought to ask, "what do you want 
me to interpret?' ... Tlicrc seems to be a lack of respect to[ward] people of 
colour and an easy presumption that only a white [person] can make the grade. 
The system needs education on not t;iking anytliing for granted and the need for 
apologies where they err, however imtocently. Tliis hasn't hurt me as much as it 
has created discomfiture and disappointment tiiat Canada is condoning a 
backward outlook." 



250 EXAMINING PRACTICES 

These incidents occurred in public courtrooms, where they could easily have been 
observed by others. Many from racialized communities would perceive them as 
profoundly disrespectful toward the lawyer and the lawyer's community. As a 
lawyer in a focus group noted, such incidents may also cause observers to doubt the 
wisdom of hiring a lawyer from their own community: 

"Aside from your self-esteem, the way you are treated in court can also have an 
impact on tlie client and how he or she perceives your ability to effectively 
represent him or her." 

Indeed, we were also told that clients have been warned not to use a black lawyer: 

"I was once representing a police officer. He was going to change lawyers 
because he was told by other officers that it would be more difficult for him if 
he was represented by a black lawyer. " 

"A client told me that his former lawyer - who was white - told him that he 
was taking a big risk if he went to a black lav\7er."' 

Persons who make statements about the "risks" of engaging a black lawyer often do 
not realize how offensive they are. While the black or other racialized lawyers who 
are the object of such statements should not be expected to carry the burden of 
educating others, they should be encouraged to explain the consequences and 
supported if they do so. More generally, all justice professionals should be alert to 
such remarks and take responsibility for drawing the speaker's attention to the 
underlying assumptions. 

Under-representation of racialized persons on juries 

Under-representation of black or other racialized persons on juries may convey 
particularly vivid images of "white justice" in the court system. This is because a 
jury of one's peers is intended to be the "conscience of the community .... [made up 
of] a representative cross-section of society, honestly and fairly chosen. "■^^ Thus, the 
absence of racialized persons from jury panels symbolizes their exclusion from the 
justice system's vision of Ontario society. 

Many black and other racialized persons perceive members of their communities as 
under-represented on juries. General concerns about their exclusion were raised 
repeatedly during public consultations. Specifically, participants stressed that under- 
representation on juries trying racialized accused persons or "high-profile" white 
accused - such as police officers - who have killed or injured a racialized victim 
tend to promote distrust in the system. 

Lawyers and judges also expressed concerns that unrepresentative juries in trials of 
racialized accused might contribute to lack of confidence. Interestingly, some 
suggested that the extent of problem varies considerably among racialized 
communities. According to a lawyer responding to the Commission's survey, for 
example, black Ontarians are especially likely to be under-represented on juries. 



Court Dynamics 251 



"Juries are chosen from assessment rolls, and as a result ver>' few young, black, 
male jurors are available to try ven*' mtmy young black male accused. Oriental 
jm^ors. on tlie other hand, are numerous, because Orientals are vastly more 
wealthy, and own far more real estate, as a group than blacks. Tlie same is true 
of elderly, especially retired, white people, who probably form the bulk of jur>' 
panels in Ontario - even in multi-racial cities like Toronto. This hardly makes 
for equality or trial by one's peers in the criminal system, and accounts for 
much of the distrust of it by the black community ." 

Findings from the Commission's general population survey of 417 black, 435 white 
and 405 Chinese residents of Metropolitan Toronto, though by no means conclusive, 
support the perception that black people are under-represented on Ontario juries. No 
black residents reported having served on a jury. By contrast, 10 white and 5 
Chinese residents reported that they had served on a jury. 

The main systemic barriers to participation of black and other racialized people on 
trial juries appear to be the citizenship qualification and the database used to list the 
names from which jurors are selected. These barriers affect the earliest stage of the 
jury selection process, the creation of the jury pool. 

Citizenship qualification 

Ontario legislation governing jury selection stipulates that jurors must be Canadian 
citizens. While this qualification is common in provincial legislation, neither 
Manitoba nor the Northwest Territories require jurors to be Canadian citizens. ^* 
Given the high proportion of Ontario residents who are not citizens, particularly in 
the major cities, the citizenship qualification inevitably results in widespread 
exclusion. As noted by David Pomerant - 

Immigrants are more likely than the Canadian-bom population to live in large 
urban cenu-es, where most jury trials take place. In 1991, immigrants constituted 
almost 40 percent of the total population of Toronto .... They represented 20 
percent or more of the total populations of Hamilton, Kitchener [and] Windsor, 
and between 15 and 20 percent of the populations of St. Catliarines-Niagara 
[and] London.^' 

The traditional justifications for restricting jury service to citizens were summarized 
in a 1 980 working paper prepared for the Law Reform Commission of Canada: 

Jurors must be familiar with the experiences and standards of conduct of the 
average member of the communit> and they must feel a commitment to the 
community. Citizenship is a logical requirement for qualifying for jury duty .... 
Citizenship is recommended as a qualifying factor because, while it provides 
only a rough indication of the abo\e characteristics, if at least draws a line 
capable of objective application .... Finally, non-citizens are not included on the 
voters" list and thus could not easily be placed on the jury list .... Acquiring 
citizenship demonstrates a commitment to Canada which ought to be the first 
qualification to participate as a juror in the importjmt functions of a court of 
criminal jurisdiction anywhere in Canada.'" 



252 EXAMINING PRACTICES 

Familiarity with Canadian customs and society and a "commitment to the 
community" are important to the jury system. ReHance on a selection criterion that 
is easy to determine and apply has clear administrative benefits. But a more 
inclusive qualification for jury service could maintain the same values, with little or 
no loss to administrative efficiency. 

Landed immigrants who have lived in Canada for many years, for example, are 
likely to have greater familiarity with the community than individuals who acquire 
citizenship after the minimum three-year qualification period. Immigrants pay taxes, 
rent or buy homes, talk to their neighbours and go to work. Many are at least as 
capable of grappling with the standards of the "average member of the community" 
as those who are officially Canadians. 

Clearly, it would also be incorrect simply to assume that immigrants, by virtue of 
their status, are less committed to Canadian society than citizens. As Madam Justice 
Wilson of the Supreme Court of Canada stated - 

... while no doubt many citizens, natural-bom or otherwise, are committed to 
Canadian society, citizenship does not ensure that this is the case. Conversely, 
non-citizens may be deeply committed to our country.'' 

Within the court system the citizenship restriction for jurors seems particularly 
anomalous since no such restriction applies to justices of the peace, lawyers, or 
judges, all of whom are expected to be familiar with community standards. The 
Commission's view is that jurors should who have lived in Canada long enough to 
understand Canadian customs, values and standards. If three years' residence is 
sufficient to qualify for citizenship, it should also be enough to qualify for jury 
service, without requiring the additional step of obtaining citizenship. 

The Commission discussed the citizenship qualification with provincial justice 
officials, Ontario Ministry of Revenue personnel responsible for the jury source list, 
members of the legal profession and judges of the Ontario Court (General Division). 
We found no opposition to the idea that landed immigrants who have lived in 
Canada for several years should be eligible for jury service. 

7.11 The Commission recommends that the Juries Act be amended to permit 
landed immigrants to serve as jurors if they have lived in Canada for three 
years and are otherwise eligible. 

Sources for the jury pool 

The procedure for selecting the jury pool is regulated entirely by the provinces. 
Ontario develops an aimual Ust for each county and judicial district, with the 
number of names on each list depending on the local sheriffs estimate of how many 
jury trials will be held in the following year.^^ 

Two separate procedures exist for generating sufficient names. Non-Aboriginal 
persons throughout Ontario are selected from a Ministry of Revenue database that 



Court Dynamics 253 

lists every property' in the province, by district. * In accordance with the provincial 
Juries Act. the selection program is designed to exclude all non-citizens. 

Commission research, which included consultations with personnel responsible for 
the Ministry' of Revenue database, found substantial consensus that reliance on this 
database may have significant limitations. In particular, because the database is 
organized around property, information about home ownership is quickly updated 
upon purchase and sale, but tenant information is much less accurate. Since the 
annual update was abolished in 1990, the only systematic means for tracking tenants 
is municipal enumeration, normally occurring every three years. 

As the database is more likely to have accurate information about owners than about 
tenants, the latter are less likely to receive the questionnaire used to select the jury 
pool. This bias has clear implications for the age and income level of jurors. 
Moreover, since members of some black or other racialized communities tend to be 
younger and poorer than white Ontarians, the current data base also subtly 
contributes to racial exclusion. 

Partly to promote representativeness, Manitoba and Saskatchewan now use 
provincial health insurance plans as sources for the jury pool. According to the 
Report of the Aboriginal Justice Inquiry in Manitoba, using this database has 
significantly increased the representation of Aboriginal persons on trial juries." 

Provincial health insurance plans appear to be superior sources for the jury pool 
than the Ministry of Revenue database. The Ministry of the Attorney General may 
wish to evaluate alternative potential source lists. However, while doing so, the 
source for establishing jury pools in Ontario should immediately transfer to the 
provincial health insurance records. 

7.12 The Commission therefore recommends that the Juries Act be amended to 
establish the Ontario Health Insurance Plan database as the source for jury 
pools in Ontario. 

Challenges to equality: oaths and affirmations 

The Commission's consultations produced several complaints about the law and 
practice in relation to the swearing of witnesses. The main objection concerned the 
practice in many Ontario courts of presenting witnesses with a Bible to hold while 
swearing the oath. Those who did not wish to be sworn on the Bible were required 
in open court to state their preference to swear another form of oath or to affirm. 

The Canada Evidence Act was amended in 1994 to eliminate the requirement that a 
witness object to the oath "on conscientious scruples" before being permitted to 



Administrators of districts that include Aboriginal reserves apply for a list of band membere of those rcscr\'es and select 
at random a proportion of the persons required. 



254 EXAMINING PRACTICES 

substitute a solemn affirmation. ''* We understand that in many Ontario courtrooms 
witnesses are now asked simply whether they wish to swear an oath or to affirm. If 
there are indications that they are members of a non-Christian faith, they are asked 
if they would like to take an oath on a holy book other than the Bible. 

It has long been recognized that the former preference for the biblical oath in court 
could insult or embarrass persons who are not of the Christian faith.^^ In 1975, for 
example, the Law Reform Commission of Canada said: "Forcing a person publicly 
to decline to take an oath is an invasion of religious privacy ..."^^ A year later the 
Ontario Law Reform Commission also expressed disapproval of the biblical oath 
procedure, stating that: the "oath as it is now administered has discriminatory 
aspects rooted in reUgious beliefs that are unacceptable to many people."^^ 

The ceremony for impressing upon witnesses the importance of telling the truth is 
significant to the criminal justice system and how it is perceived. In the past, many 
people saw the biblical oath ceremony as symbolizing an official preference for 
Christianity over other religions. The 1994 changes to the Canada Evidence Act 
eliminate that preference. One practical consequence of presenting a neutral choice 
between the oath or solemn affirmation is that court time must be taken to explain 
to many witnesses the nature and significance of this choice. 

A more complex challenge is to ensure that courts respond equally and respectfully 
to the diverse religious and non-religious beliefs of Ontarians. One method of 
securing equality and respect would require the court system to make available the 
holy books and other facilities, such as washbasins and prayer spaces, necessary to 
permit witnesses of other faiths to bind themselves. It would also require proper 
storage and handling of holy books and training of court officials who administer 
the oath. 

The court system in England and Wales has expanded the religious option in this 
way. Its experience shows that this reform may involve significant adjustment to 
well-established practices and require considerable sensitivity. A "good practice 
guide" on the administration of spiritual oaths, issued to all judges and magistrates, 
provides general advice and specific help on problems that have occurred because of 
ignorance or insensitivity. ^^ In addition to instructions on labelling, storing and 
handling various holy books, the guide discusses restrictions on swearing oaths that 
devout members of some faiths may face, and describes obligations relating to dress 
and cleanliness that witnesses may need to fulfill in order to swear a spiritual oath. 
It also details how judges or court officials may inadvertently give offence or cause 
embarrassment through ignorance of spiritual traditions. 

Another approach to securing equality would be simply to abolish the spiritual oath. 
This would result in loss of choice for witnesses who would prefer to swear such an 
oath. In addition, the criminal justice system would no longer be able to require 
devoutly religious witnesses to bind themselves in accordance with their faith. 
However, it would eliminate any need for judges or court clerks to invade the 



Court Dynamics 255 

religious privacy of witnesses by questioning them about their faith. It would also 
avoid the necessity' for courts to anticipate and respond to a potentially wide variety 
of spiritual practices, with the corresponding risk of causing offence through 
ignorance. 

Most proposals for reform in the 1970s advocated abolition of the spiritual oath. 
This is simple to implement, would tend to reduce the "mythology of courtroom 
proceedings,"^' and would reflect the modem political reality that Ontario is part of 
a secular state. Arguably, abolition is also the logical conclusion of developments in 
case law over the last 30 years. No longer does the power of the biblical oath in 
court proceedings rest on what were once believed to be its spiritual consequences - 
divine retribution against persons who give false testimony. "" Instead, it is seen as 
binding the conscience of the modem witness and heightening the sense of a moral 
obligation to tell the truth."' Shorn of so much original meaning, the essence of the 
biblical oath today differs little from that of the secular alternative. 

Some Ontario judges have already adopted a universal secular "oath" that is 
administered to adult witnesses and children aged 12 and over. In the swearing 
ceremony pioneered by Judge Peter Nasmith, for example, a court clerk asks every 
witness two questions: "Do you know that it is a criminal offence intentionally to 
give false evidence to a judicial proceeding*^" and "Do you solemnly promise to tell 
the truth in this proceeding?"* Simple but effective, this ceremony warns of the 
serious legal consequences of lying under oath and allows wimesses publicly to 
commit themselves to tell the truth. In this way, the secular "oath" satisfies the 
court's need for witnesses to appear to have bound their consciences, in accordance 
with the requirements of the Canada Evidence Act. 

We understand that the secular oath has been accepted without question in the 
courts where it is administered. *~ Witnesses do not appear to be surprised or 
disturbed by the absence of a Bible and a request to make their promises before 
god. Some are likely thankful to avoid being questioned in open court about their 
religious beliefs. 

Since the rules of evidence governing criminal trials fall within federal jurisdiction, 
Ontario is unable to abolish the religious oath in criminal proceedings. Moreover, 
the failure of the federal government to do so in its most recent amendments 
suggests that such a change is unlikely in the near fiiture. Finally, the precise form 
of the ceremony for "binding the conscience" of witnesses falls within the ultimate 
authonty of the presiding judge in the courtroom. The principle of judicial 
independence precludes the Ontario govemment from giving judges directions in 
this respect. 



The late Judge Nasmilh began using the secular oath ceremony in the early 1980s in Kingston. He continued the practice 
in Toronto courts and in Barrie. Other judges at these courts have adopted it. 



256 EXAMINING PRACTICES 

However, adoption of an "oath" that includes only a promise to tell the truth and an 
acknowledgment of the legal consequences of lying is the best route for achieving 
equality. We suggest that judges adopt such a practice. 

Where judges continue to require religious oaths, we suggest that the judiciary take 
responsibility for educating them about the variety of oath requirements. For 
example, the Hindu oath is taken on the Gita, Jews swear on the Torah, Muslims 
swear "by Allah" on the Quran, Sikhs swear by Guru Nanak, Rastafarians may 
swear on the Bible but refer to the deity as "Jah," and Quakers and Moravians 
would likely make an affirmation. The good practice guide on Oaths and Oath- 
taking, distributed by the Judicial Studies Board in Britain, would provide a good 
starting point for such judicial education. 



Court Dynamics 257 

Endnotes 

'• Hon. Charles L. Dubin, "The Future of Our Profession and of Our Justice System." Law Society 
Gazette 28 (1994) 201, p. 2{)3. 

'■ See R. V. Parks (1993) 84 C.C.C. (3d) 353 (Ont. C. A), and Madam Justice Beverley McLachlin. 
"Stereotj^pes: Their Uses and Misuses," address to the McGill University Faculty of Law Human 
Rights Forum. Nov. 25, 1992 (manuscript on file). 

^- R. V. Parks, at 380. 

Equal Opportunity Consultants, "A Community Consultation of the Perceptions of Racial 
Minorities" (Toronto: 1990) (manuscript on file), pp. 18-22, Province of Ontario, Task Force 
on Race Relations and Policing, Report, chair, Clare Lewis (Toronto: Task Force, 1989), pp. 
13-14, Province of Ontario, Task Force on Race Relations and Policing, Report, chair, Clare 
Lewis (Toronto: 1992) p. 1: Law Reform Commission of Canada, Aboriginal Peoples and 
Criminal Justice: Consultation Document (Ottawa: 1991), "Backgroimd," p. 7. 

^' United Kingdom, Judicial Studies Board, Third Annual Report of the Ethnic Minorities Advisory 
Board (London: February 1995), p. 14. 

^- Ibid., p. 12. 

R. V. Jose Antonio Medeiros and Albilio Cabral, Ontario Court of Justice (General Division), 
Toronto, Oct. 23. 1991 (emphasis added). 

*■ R. V. Ronald Butcher, Ontario Court of Justice (Provincial Division), Toronto, Sept. 4, 1990. 

^ R. V. Do Yuen Ho, Ontario Court of Justice (Provincial Division), Toronto, Nov. 24, 1992. 

'° For discussion of this issue, see generally, Ontario Ministry of the Attorney General, Report of 
the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution 
Discussions, chair, G.A. Martin, (Toronto: Queen's Printer, 1993), pp. 327-30. 

Courts of Justice Amendment Act. 1994. SO. 1994. c. 12, s. 16, amending ss. 51.9 and 51.11 
of the Courts of Justice Act. 

Ibid., s. 51.9(3)(1). 

Canadian Bar Association, Code of Professional Conduct (Ottawa, 1987), commentary to Rule 
IX, p. 37. 

See the case law summarized in Clayton C. Ruby, Sentencing, fourth edition (Toronto: 
Buttenvonhs, 1994) pp. 239-42; R. v. Shokohi-Xtanesh (1992) 69 C.C.C. (3d) 286 (B.C.C.A.); 
R. V. Mela (1975) 26 C.C.C. (2d) 510 (out C.A.); R. v. A'. //. [1994] O.J. No. 1694. 

'^ Equal Opportimities Consultants, A Community Consultation (note 4), p. 12. 



II. 



12. 



13. 



14. 



258 EXAMINING PRACTICES 



16. 



17. 



18. 



19. 



20. 



22. 



23. 



24. 



Hon. Richard E. Kimball, "'Judicial Behaviour and R. v. Sussex Justices," Provincial Judges 
Journal 18 (1993) 11, p. 14. 

Multiculturalism and Citizenship Canada, Eliminating Racial Discrimination in Canada, 
(Ottawa: Supply and Services, 1989), p. 7. 

R. V. Parks (note 2) at 369. 

See, for example, Toward Unity: Criminal Justice and Corrections, report of tlie Canadian 
Committee on Corrections, Report, chair, Roger Ouimet (Ottawa: Queen's Printer, 1969); Law 
Reform Commission of Canada, Our Criminal Law (Ottawa: Supply and Services, 1977); 
William J. McGrath, ed.. Crime and its Treatment in Canada (Macmillan: Toronto, 1976); Hon. 
Antonio Lamer. "The Courts and the Commimity," in C.H.S. Jayewardene, ed.. The Community 
and the Administration of Justice: Proceedings of the Second Conference of Applied 
Criminology, May 5, 6 and 7, /i" 76 (University of Ottawa, Department of Criminology: Ottawa, 
1976).; Heino Lilies and Barry Smart, "Tlie Role of the Community m Sentencing" (1992) 8 
Justice Report. 

Agreement Between Her Majesty the Queen in Right of Ontario, and the Federation of Indian 
Friendship Centres of Ontario, 1980 (on file), p. 3. 

SPR Associates, "An Evaluation of tlie [Ontario] Native Courtworker Program (Criminal)," May 
12, 1989 (on file); Province of Manhoba, Public Inquiry into the Administration of Justice and 
Aborigmal People, Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg, 1991), p. 
738; Province of Alberta, Task Force on the Criminal Justice System and its Impact on the 
Indian and Metis People of Alberta, Report, chair R.W. Cawsey ("Cawsey Report"), (Edmonton, 
1991), p. 16, Rec. 3.9, p. 33, Rec. 7.2; Province of Saskatchewan, Report of the Saskatchewan 
Metis Justice Review Committee (Regina, 1992), p. 72, Rec. 3.1; Province of Saskatchewan, 
Report of the Saskatchewan Indian Justice Review Committee (Regina, 1992), p. 73, Rec. 3.2. 

Dowrich Management Services, "African Canadian Court Worker Program Evaluation" (Toronto: 
1995) (manuscript on file), p. 4, Rec. 2. Informal evaluations of "Whyy Mee," a smaller project 
established in 1993 in the Metro North courthouse, are similarly positive. 

The Court stated that its decision "relates specifically to the right of an accused in criminal 
proceedings and must not be taken as necessarily having any broader application." R. v. Tran 
(1995) 92 C.C.C. (3d) 218 at 227 (emphases in origmal). 

Ibid., at 238-9. 



^^ Korean Canadian Women's Association, written submission to the Commission on Systemic 
Racism in the Ontario Criminal Justice System (on file), p. 8. 



26. 



27. 



28. 



R. v. Hayes (1989) 48 C.C.C. (3d) 161 (S.C.C.) 

R. v. Sherratt (1991) 63 C.C.C. (3d) 193 (S.C.C.) at 203 per L'Heureu.x-Dube J. 

Jury Act, R.S.M. 1987, c. J-30; Jury Ordinance, R.O. 1985, c. 55, s. 1. A recent discussion 
paper on juries in Nova Scotia recommends that landed inunigrants be eligible for jury service. 



Court Dynamics 259 



Law Reform Commission of Nova Scotia, "A Discussion Paper on Juries," May 1993, Halifax, 
Nova Scotia (manuscript on file). 

^'' David M. Pomerant, "Multiculturalism, Jun.' Trials and Jur\' Selection in Criminal Cases," June 
21, 1993 (on file), p. 4. 

^^ Law Reform Commission of Canada, "Tlie Jan.- in Criminal Trials," working paper no. 27 
(Ottawa: Supply and Services, 1980) at 40. 

^' Andrews v. The Law Society of British Cohimbia. [1989] 1 SCR. 21 at 36. 

^-- Juries Act, R.S.O. 1990, c. J-3. s. 5. 

"^ Province of Manitoba, Public Inquiry into tlie Administration of Justice and Aboriginal People, 
The Justice System and Aboriginal People, vol. 1 of tlie Report (Winnipeg, 1991), p. 378. 

'"• S.C. 1994, c. 44, s. 88. 

'^' See generally, A. Peter Nasmith, "High Time for One Secular Oath," (1991) 3 Law Society of 
Upper Canada Gazette, 230; Stanley Scliiff, Evidence in the Litigation Process, fourth edition 
(Toronto; Carswell, 1993).. 

^^ Law Refonn Commission of Canada, Report on Evidence (Ottawa: Information Canada, 1975), 
pp. 86-7. 



37. 



38. 



39. 



42. 



Ontario Law Reform Commission, Report on the Law of Evidence (Toronto; Ministry of the 
Attorney General, 1976), p. 129. 

United Kingdom, Judicial Studies Board, Oaths and Oath-Taking, occasional paper no. 1 of 
Papers on Ethnic Minority Issues (London: December 1992). In addition to providing general 
guidance and specific information for judges and magistrates, the paper urges development and 
distribution in appropriate languages of pamphlets about the oath. 

Law Reform Commission of Canada, Evidence Project, Competence and Compellability (Study 
Papers), commissioner, Martin L. Friedland (Ottawa: Information Canada, 1972), p. 10. 

For explicit repudiation of the "divine retribution" theor>' of the oatli, see Bannerman v. The 
Queen (1966) 48 CR 110 (Man. C.A.); affdwithout reasons |1966] SCR lGn,R. v. Horsburgh 
[1966] 3 C.C.C. 240 (Ont. C.A.) 240, affd [1967] S.C.R 746. 

For recent judicial characterizations of the oath as symbolizing a moral obligation, (recognized 
by law) to tell the truth, see, R. v. Fletcher (1982) 1 C.C.C (3d) 370 (Ont. C.A); R. v. Khan 
(1988) 42 C.C.C. (3d) 197 (Ont. C.A); affdi?. v. Khan [1990] 2 SCR 531. 

Telephone interviews with Judge A.P. Nasmith, March 28, 1994 and August 24, 1994. 



Chapter 8 

Imprisonment After Conviction 



The criminal trial and the process of sentencing in particular are a 
symbol and an embodiment of the principles of justice (or injustice, 
as the case may be) in Canadian society. As such it is essential to 
ensure at the very least that the methods by which offenders are 
sentenced and sanctioned do not promote or exhibit characteristics of 
racial discrimination. 

- Bruce Archibald' 

This chapter focuses on decisions that result in imprisonment after conviction. While 
imprisonment is only one of several sentencing options, it is the most severe. It is 
extremely expensive and may have a devastating impact on the family and 
dependents of incarcerated persons. It is also widely viewed as ineffective at either 
deterring criminal conduct or rehabilitating offenders. Indeed, considerable evidence 
suggests that imprisonment encourages and increases criminal conduct.' 
Commenting on the futility of imprisonment, a Canadian parliamentary 
subcommittee stated: 

Society has spent millions of dollars over the years to create and maintain the 
proven failure of prisons. Incarceration has failed in its two essential purposes - 
correcting the offender and providing permanent protection to society. The 
recidivist rate of up to 80 percent is evidence of both.' 

Canadian crimmal courts have been widely criticized - by community members as 
well as by judges, lawyers, academics and policy makers - for over-reliance on 
prison sentences.'' Canada has a high rate of incarceration relative lo other 
industrialized nations, apart from the United States. We sentence people to prison 
more frequently than any country in the European Union, at more than double the 
rates of Sweden and Japan, and three times that of the Netherlands.* 



Comparisons among nations are somewhat crude because of differing methods of counting and reporting 
incarcerated persons, but estimated incarceration rates are widely reported as general indications. All such reports 
show an extraordinanly high rate of incarceration in the United States. In December 1992, for example, the U.S. 
Bureau of Justice Statistics reported an incarceration rate of 330 persons per 100,000 of tlie population, not counting 
those held in local jails. These data compare with lower rates in the United Kingdom (92 per 100,000), France (84), 

261 



262 EXAMINING PRACTICES 

Inconsistency in prison sentences within a criminal justice system is another well- 
documented problem. Apart from maximum, and occasionally minimum sentences, 
the Criminal Code has traditionally given judges no guidance on sentencing in 
routine or typical cases. While judgments by provincial courts of appeal offer 
guidelines for particular types of offences, considerable potential for disparity 
remains. Differences in how judges view the facts of a case, the goals and principles 
of sentencing, the causes of crime and the role of courts in passing sentence may all 
contribute to disparities. 

Variations in court practices among or within cities may also significantly influence 
the likelihood of imprisonment. A recent study of sentencing in adult provincial 
courts shows, for example, distinct differences in incarceration rates between Ottawa 
and Toronto.' Persons sentenced in Toronto for offences such as trafficking in or 
possession of a narcotic, assaulting or obstructing a peace officer, or failing to 
appear in court were much more likely than those in Ottawa to be imprisoned. ^ 

Among the most serious concerns regarding sentencing is that incarceration rates are 
higher for black and other racialized people than for white people. This concern is 
clearly raised by data in Chapter 4 documenting over-representation of black and 
Aboriginal persons among those sentenced to Ontario prisons in 1992/93. In 
addition, participants in Commission consultations repeatedly expressed beliefs that 
black people, in particular, are more likely to receive prison sentences than white 
people convicted of the same offences in similar circumstances. We also found that 
sizeable proportions of black (48%), white (29%) and Chinese (29%) residents of 
Metropolitan Toronto believe that a black person would receive a longer sentence 
than a white person who commits the same crime. ' 

In light of these preliminary findings, the Commission decided to investigate the 
exercise of discretion to incarcerate. We consulted with defence, duty and crown 
counsel, probation officers and other correctional officials. The Commission also 
conducted a major statistical study of sentencing outcomes for black and white adult 
males convicted of five specific offence types. 

We begin with an overview of the sentencing process and then present the major 
study in detail. After documenting findings about differential incarceration rates and 
lengths of prison terms, we make recommendations to safeguard this vital aspect of 
the criminal justice system against the risk of racial bias. 



Italy (56) and Sweden (55). Canadian data for 1992/93 show both an overall estimated incarceration rate of 130 per 
100,000 persons. (Canadian and other rates are summarized in "Basic Facts about Corrections in Canada," 1993 
edition (Ottawa: Supply and Services, 1994|). In 1990 incarceration rates per 100,000 were estimated at 45 in Japan 
and 40 in the Netherlands. (M. Mauer, "Young Black Men and tlie Criminal Justice System," [Washington, D.C.: 
The Sentencing Project, 1990]). 

This finding comes from the population survey of Metro Toronto residents, which is summarized in Chapter 2 and 
described in more detail in our Technical Volume. See Appendix B. 



Imprisonment after Conviction 263 

Overview of sentencing 

In a submission to the Canadian Sentencing Commission, the Law Reform 
Commission of Canada said: 

Excessi\e discretion is conferred .... Equality, clarity, and truth in sentencmg are 
sacrificed .... Disparity becomes more pronounced in tlie absence of 
authoritative statements of purpose and principle .... Tlic current scheme creates 
disparity and tlierefore fails to promote equality in a variety of ways.' 

At its simplest, the objective of sentencing is to decide what penalty is to be 
imposed on a person found guilty of an offence.** However, sentencing for criminal 
offences is a complex process that is viewed as a specialized art, craft or science. In 
Ontario, it is practised exclusively by legally trained professionals. Inherent in this 
organization of decision-making are the ideas that sentencing is a principled process 
and that decisions must be justifiable in law. 

Canadian law has traditionally given wide scope to judicial discretion at sentencing. 
The Criminal Code provides a skeletal framework, supplemented by judgments of 
appeal courts that sketch an approach to sentencing or specify factors to be 
considered. But primary responsibility for interpreting and applying the guidelines to 
each case remains with the sentencing judge. The judge is expected to balance 
competing goals of punishment - such as deterrence, rehabilitation and denunciation 
- and to consider a variety of factors pertaining to the convicted person and the 
offence. A frequently cited decision of the Manitoba Court of Appeal lists seven key 
factors: 

degree of premeditation 

• circumstances of the offence, i.e., the manner in which it was committed, the 
amount of violence involved, any use of an offensive weapon, and the degree of 
active participation by each offender 

• gravity of the crime, indicated by the maximum punishment provided by statute 

• attitude of the offender after commission of the crime, which indicates the 
degree of criminality and throws some light on the participant's character 

• offender's previous criminal record, if any 
offender's age, mode of life, character and personality 

• any pre-sentence or probation official's report, or any mitigating or other 
circumstances' 

Additional factors that judges may consider include: local incidence of the crime, 
typical sentences for the same or similar offences, how the offence has affected the 
victim, "mercy" and the likely effectiveness of the punishment. '° 



264 EXAMINING PRACTICES 

Although judges ultimately decide on the appropriate sentence, they do not work in 
isolation. Crown and defence or dut>' counsel are responsible for bringing forward 
information about the offence and offender that suggests where the particular 
offence fits in the range of available sentences. They may also make a joint 
submission about an appropriate sentence. A probation officer may be directed to 
produce a pre-sentence report (called a pre-disposition report if the accused is a 
youth), which is a social history of the convicted person. These reports are intended 
to provide sentencing courts with accurate and timely information about 
"antecedents, family history, previous convictions, character of employment and 
other information."" They generally also include an assessment of the convicted 
person and recommendations on sentence. 

The complex mix of personal beliefs of judges, competing goals of sentencing, 
imprecise standards and inadequate information about how others apply standards 
undermine consistency in sentencing.'- This tendency is exacerbated by a powerful 
tradition of individualized sentencing that purports to allow the punishment to fit the 
offender as well as the crime. According to this tradition, offenders who commit 
similar offences in similar circumstances need not receive the same sentences if they 
differ in ways perceived to be relevant. Thus a convicted person who can 
demonstrate mitigating factors such as a steady employment record and good 
character witnesses, may be less likely to receive a prison sentence than someone 
convicted of the same offence who lacks these advantages. 

What are the implications of the individualized approach for the fundamental 
principle of equality, especially racial equality? The answer largely depends on what 
factors are viewed as sufficient to justify a less serious sentence. If, for example, the 
courts consistently restrict mitigation to factors such as steady employment that may 
indirectly discriminate against black and other racialized accused, then the 
individualized approach may result in inequality in sentencing outcomes. 
Conversely, were the courts to treat cultural diversity or social deprivation as 
mitigating," the individualized approach could enhance equality.* 

Restraint in tiie use of imprisonment is another fundamental principle of a fair and 
effective sentencing system. In a policy statement released in 1982, the Government 
of Canada called for formal adoption of the restraint principle, proposing that "in 
awarding sentences, preference should be given to the least restrictive alternative 
adequate and appropriate in the circumstances," '^ In 1987, the Canadian Sentencing 
Commission concluded that: 

Humanitarian concerns dictate that punishment should be inflicted with restraint. 
If one adds to this consideration the fact that the imposition of the harshest form 
of sanction appears to contribute only modestly to the maintenance of a 
harmonious society, a commitment to restraint is tlie inevitable result. '^ 



Tliis point is frequently made in connection with .'Aboriginal accused. 



Imprisonment after Conviction 265 

In response to recommendations from these and other policy-making bodies. 
Parliament recently enacted that judges should not impose imprisonment when a less 
restrictive sentence would be appropriate. "" 

Sentencing outcomes: our major study 
Introduction and scope 

To investigate the exercise of discretion at sentencing, the Commission conducted a 
major statistical study of imprisonment decisions for samples of black and white 
adult males sentenced for any of five offence types: drug charges, sexual assaults, 
bail violations, serious non-sexual assaults and robbery. This study, which is unique 
in Canada, draws on the same set of data, gathered by the Canadian Centre for 
Justice Statistics, as the major study of imprisonment before trial in Chapter 5. 
Analyses were conducted by Professors Julian Roberts of the University of Ottawa 
and Anthony Doob of the University of Toronto. 

As noted in Chapter 5, the original sample consists of 821 adult males classified by 
the police as black and 832 adult males classified by the police as white who were 
charged by the Metro Toronto Police in 1989/90.* This sample was randomly 
selected from police files using a matching technique that would ensure significant 
and virtually identical numbers of accused described as black and white charged 
with each offence type. To supplement the information about charges and race, the 
Centre collected a great deal of data about personal characteristics of the accused, 
previous criminal histories and how they were processed through the criminal justice 
system. 

Inevitably, the sentenced sample - 488 men classified by the police as white (59% 
of white men charged) and 383 classified as black (47% of black men charged) - is 
smaller than the original. It contains a higher proportion of white (56%) than black 
(44%i) men and racial matching by offence types is less precise. Robbery charges, 
for example, accounted for 19% (154) of white and 18% (147) of black accused in 
the original sample. At sentencing however, these charges accounted for 22% of 
white and \5% of black convicted men (see Table 8-1). 

Attrition also resulted in small numbers in some offence categories,^ which makes 
detailed statistical comparisons of black and white sentences within these categories 
unfeasible. Across the sentenced sample as a whole, however, the numbers are more 
than sufficient for meaningful comparisons of factors such as previous criminal 
histories, unemployment and the processing of charges prior to conviction. 



See Chapter 5 for an explanation of" why this particular sample was selected, and restrictions of the study. A detailed 
description of methodology appears in our Technical Volume (see Appendix B). 

For example, only 25 black and 5 1 white accused in the sample were sentenced for sexual assault. 



266 EXAMINING PRACTICES 

The overwhelming concern expressed in Commission consultations is that black men 
are disproportionately vulnerable to incarceration. Therefore, the study focuses on 
one sentencing disposition only - imprisonment. Our primary interest was the 
threshold decision to incarcerate, but we also compared the length of the prison 
terms given to black and white men. 

After presenting the basic findings of higher incarceration rates for black compared 
with white convicted men, we consider whether race could be masking other 
differences relevant to sentencing. First, we separately compare characteristics of 
offences and those convicted, and aspects of criminal justice processing. These 
analyses look at gravity of offences, previous criminal histories, unemployment and 
other social factors, plea, crown election and pre-trial detention. We then integrate 
these separate comparisons into a multivariate analysis - which shows how factors 
interact - to see if differential outcomes for the black and white sentenced samples 
persisted once factors known to influence sentencing were taken into account. 

Differential imprisonment rates 

Initial comparisons of sentencing outcomes for black and white convicted men 
revealed statistically significant differences across the sample as a whole, within the 
largest single offence category (the drug offence sample) and within a sub-sample of 
those sentenced for sexual assaults, bail violations and drug offences. As Figure 8-1 
illustrates, about two-thirds of the black convicted men in the entire sentenced 
sample, the sub-sample and the drug offence sample received a prison sentence. By 
contrast, the proportion of white convicted men who were sentenced to prison varies 
depending on whether the sample includes those sentenced for all five offences 
(57%), the three offences in the sub-sample (47%) or drug offences only (36%). 

These findings are highly suggestive, but taken alone do not establish direct racial 
discrimination in sentencing decisions. What appears to be a relationship between 
being black and being sentenced to prison could conceal other differences that 
matter in sentencing. Identification of such other differences would not necessarily 
absolve the sentencing process from responsibility for discriminatory outcomes, but 
it might highlight reliance on apparently neutral factors that adversely affected the 
black sample. 

Seriousness of offences 

One explanation for the basic findings of differential outcomes could be that the 
black sample was sentenced for more serious offences than the white sample. 
Variations in offence seriousness was limited by restricting the sample to black and 
white men sentenced for the same five offence types. Nevertheless, the possibility 
remained that in general the two groups were sentenced for qualitatively different 
offences. 



Imprisonment after Conviction 267 



Figure 8-1 : Imprisonment rate after conviction, by race 



36 



Drug charge sample 



Three-charge sample 



Total sentenced sample 



47 




□Convicted white men 
■Convicted black men 



20 40 60 80 
Percent imprisoned 



100 



Source: Canadian Centre for Justice Statistics 



We tested the data for three indications of significant differences in offences. The 
first relates to the seriousness of the criminal offence category. Although the sample 
in each category was comparable when charges were laid, not all accused reached 
the sentencing stage. We therefore attempted to determine whether the different 
samples in each category could explain the disproportionate outcome. In other 
words, did more black than white accused end up being convicted of and sentenced 
for more serious offences? 

Second, we compared the specific charges laid against those convicted of offences 
in the sexual assault, bail violation and drug categories. Offence-specific data on this 
sub-sample are important because of the finding, reported below, that racial 
differences in outcomes persist after taking account of criminal histories, choice of 
plea, crown election (where applicable), detention before trial, and economic status 
of those convicted. 



Third, we examined the incident that led to a charge. Such factual details are 
important because judges consistently emphasize them when determining sentences. 
Both an armed hold-up at a bank and a theft of a baseball cap in a street scuffie, for 
example, may result in robbery convictions, but a sentencing court is highly unlikely 
to view the two as equally serious. 



268 EXAMINING PRACTICES 

Seriousness of offence type 

Table 8- 1 shows the number and proportions of black and white men in the sample 
who were sentenced for each type of offence. It can readily be seen that the offence 
profiles of the two groups are distinct. Those sentenced for sexual assaults or 
robberies, for example, account for just over one in five (22%) of the black sample, 
compared with one in three (33%) of the white sample. While the drug offence 
category contains virtually identical numbers of black (152) and white (157) 
convicted men, it accounts for a notably higher proportion of sentences in the black 
(40%) than white (32%) samples. 

The difference between the offence profiles of the two groups is statistically 
significant. Does it explain the harsher sentences imposed on the black sentenced 
sample? 

Table 8-1. Offence profiles of sentenced sample, by race. 





White men 


Black men 


Offence category 


number 


percentage 


number 


percentage 


Drugs 


157 


32 


152 


40 


Sexual assault 


51 


10 


25 


7 


Bail violation 


109 


22 


70 


18 


Serious assault 


66 


14 


79 


21 


Robbery 


105 


22 


57 


15 


Total by race 


488 


100 


383 


101 



Percentages may not add up to 100 due to rounding. 
Source: Canadian Centre for Justice Statistics, 1994 

Since Canada lacks an official scale of offence seriousness,' the ranking of offence 
categories such as these inevitably requires judgments - about which reasonable 
persons may and do disagree. But the higher proportions of white than black 
convicted men who were sentenced for robbery and sexual assault - compared with 
the higher proportions of black than white men sentenced for serious non-sexual 
assaults and drug offences - suggest that the offence profile of the white sample is 
at least as serious as that of the black sample. 

This view is supported by a recent study of sentencing in adult provincial courts. 
According to that study, incarceration rates for sexual assault and robbery offences 
in Ontario range from 54% to 95% of those convicted, depending on the specific 



While the Criminal Code stipulates maximum (and some minimum) sentences for each offence, and the Ontario 
Court of Appeal issues guideline judgments, neither offers a mechanism for ranking each criminal offence as more 
or less serious than every other offence. The Code has a limited number of maximum sentences and applies each 
one to several offences. In this respect, for example, offences such as burglary of a business and sexual assault with 
a weapon are formally equivalent because the maximum penalty for both is 14 years imprisonment. 



Imprisonment after Conviction 269 

charge. Offences within the categories with higher proportions of the black than 
white convicted men in the Commission study (drugs and serious non-sexual 
assaults) have incarceration rates ranging from 21% to 87%." 

Specific charges: the sub-sample 

Comparison of the specific charges in the drugs, sexual assaults and bail violation 
samples was hampered by missing data. Analysis of the available data revealed no 
difference in the offences of black and white men sentenced for bail violations or 
sexual assaults. Everyone in the sample sentenced for bail violation had been 
charged with "fail to comply with the conditions of release," and everyone 
sentenced for sexual assault had been charged with a Level 1 (least serious) offence. 
Unless, for some unknown reason, the missing charges laid against the black and 
white sentenced men differed significantly, these data would not account for the 
higher incarceration rates of the black sample. 

By contrast, the data showed distinct differences between white and black persons 
sentenced for drug offences. Of those for whom information was available, 90% of 
the white but only 67% of the black sample were convicted of simple possession, 
while 25% (12 men) of the black sample but only 8% (six men) of the white sample 
were convicted of possession for the purposes of trafficking. Since trafficking 
offences are more serious than simple possession, this difference in offences could 
explain some of the disparity in sentencing outcomes. 

Further analysis of the drug offence sample indicates, however, that the difference in 
incarceration is not wholly due to the nature of the offences. We compared the 
sentences imposed on the black and white samples convicted of the same offence, 
possession of a narcotic. This analysis revealed that of those known to be convicted 
of simple possession, 49% of black but only 18% of white men were sentenced to 
prison. 

Characteristics of the criminal incident 

We analyzed data on the criminal event that led to the conviction. Again a 
significant quantity of data was missing, which is not unusual in these studies, but 
the infomiation available indicates that the circumstances of the black and white 
samples are quite comparable. Among those convicted of sexual assaults, serious 
non-sexual assaults and robberies, the data showed no significant differences in the 
number of victims, the extent of injury to victim(s), relationships between victim(s) 
and the convicted men, and the sex of the victim(s). In addition, there was no 
difference in the amount of property loss in the robbery category. Among those 
convicted of drug offences, the data showed no statistically significant differences in 
the nature or quantity of drugs involved. 



270 EXAMINING PRACTICES 

Summary 

In general, the comparison of offences shows little difference between the two 
samples. We found no evidence that the black sample was sentenced for more 
serious offence t>'pes, nor were the characteristics of their cases more serious than 
those of the white sample. Even where we did find a significant difference (specific 
drug offences), further analysis demonstrated that it did not fully account for the 
higher incarceration rate of the black sample. Taken together, these findings suggest 
that the basic findings of differential incarceration rates are not explained by 
qualitative differences in the offences. 

Criminal history 

A criminal record (or lack of one) exerts a powerful influence on sentencing 
decisions. Judges regularly refer to it in reasons for sentence,'^ and empirical studies 
have consistently found that it affects sentence severity. '^ Comparison of the 
criminal records of the black and white sentenced samples is particularly important 
to this study because research in Canadian and other jurisdictions suggests that 
differential imprisonment of black or other racialized people is often due to 
seriousness of criminal record."" 

To investigate fully this factor, we selected six aspects of criminal record that are 
known - or might reasonably be thought - to influence sentencing judges. Each 
aspect was first analyzed to see if it appeared to affect the sentencing decision, 
regardless of race. We then compared the black and white samples in the entire 
sentenced sample to see if that characteristic would account for racial disparity in 
imprisonment. The six characteristics are - 

• number of previous convictions for any criminal offences 

• time since last conviction - "clean time" 

• number of previous convictions for violent offences 

• number of previous convictions for the same offence as the current one - 
"offence track record" 

• most serious previous conviction 

• length of prison sentence(s) for previous conviction(s) 

Two aspects of criminal record - previous convictions for a violent offence and 
"offence track record" - proved very significant to prison sentences, regardless of 
race. Comparison of the records of the black and white sentenced samples, however, 
revealed no statistically significant differences in either characteristic. 

Another aspect - most serious previous conviction - appeared in different patterns 
on the records of black and white convicted men, but the likely impact of the 
difference on sentence severity was unclear. Black convicted men (27%) were 
slightly more likely than their white counterparts (25%) to have a violent offence 
apart from robbery as their most serious previous conviction. While courts usually 



imprisonment after Conviction 271 



view violent offences as very serious, the difference between the two groups is 
small. Black (14%) were also more likely than white (8%) convicted men to have as 
the most serious prior conviction an offence in a miscellaneous category involving 
neither personal violence nor loss or damage to property. 

White convicted men (10%) were significantly more likely than their black 
counterparts (6%) to have been previously convicted of robbery, a serious offence 
that has one of the highest incarceration rates in Ontario."' The data also show a 
dramatic difference in the proportions of white (15%) and black (4%) convicted men 
whose most serious prior offence was break and enter. This offence has a high 
incarceration rate." which again indicates that it is viewed as serious. Since the 
patterns of offences appear to be comparable, the differences in "most serious 
previous convictions" are unlikely to explain the basic findings about differential 
sentencing. 

Number of previous convictions 

As would be expected, the number of previous convictions increases the likelihood 
of prison sentences. Regardless of race, convicted men without a criminal record 
(45%) were less often incarcerated than those with one to five previous convictions 
(61%) or six or more (81%) convictions on their records. Black convicted men 
(35%), however, were more likely than their white counterparts (28%) to have no 
previous convictions. Also, black convicted men (28%) were less likely than their 
white counterparts (36%) to have six or more previous convictions. 

This noteworthy finding, that white convicted men had more serious criminal 
records than their black counterparts, led us to compare incarceration rates at each 
level of record. Figure 8-2 shows that at each level, black convicted men were 
significantly more likely than white convicted men to be sentenced to prison. 
Among those without prior convictions, 52% of black, but only 38% of white 
convicted men received a prison sentence. Within the sample of those with one to 
five prior convictions, 71% of black but only 52% of white convicted men were 
imprisoned. Of those with the longest records (six or more convictions), 88% of 
black and 77% of white convicted men were sentenced to prison. 

Previous prison terms 

One important indication of the seriousness of earlier criminal offences is whether 
they resulted in prison sentences. Another is the length of such sentences.''^ Our 
study found that these aspects of criminal record had an evident infiuence. 
Regardless of race, convicted men who had previously served a prison sentence 
were more likely than those without a prison term on their records to be imprisoned 
on the current offence(s). Moreover, the longer the previous sentence, the stronger 
the likelihood of imprisonment. Prison sentences for the current offence were 
imposed on 48% of convicted men without a previous custody term, on 72% of 
those who had served a sentence of up to one year and on 85% of those who had 
previously served a prison term of more than one year. 



272 EXAMINING PRACTICES 



Figure 8-2: Imprisonment rate after conviction, by race and criminal record 



38 



convictions 



1 to 5 convictions 



6 or more convictions 




cConvicted white men' 
■Convicted black men 



20 40 60 80 100 
Percent Imprisoned 



Source: Canadian Centre lor Justice Statistics 



Comparison of the white and black sentenced samples shows that this aspect of 
criminal record does not account for the harsher sentences imposed on black men. 
The data show, first, no statistically significant differences in the proportions of 
black (61%) and white (64%) convicted men who had served a previous prison 
sentence. Second, of those who had been sentenced to prison, the average prior 
sentenced for white convicted men (752 days) was significantly longer than the 
average sentence for their black counterparts (271 days). 

Clean time 

All else being equal, judges typically impose less severe sentences on those who 
have avoided convictions for a significant period than on those re-convicted shortly 
after a previous offence. This "decay" or "gap" factor, in which older offences carry 
less weight than more recent convictions, was evident in our findings. Regardless of 
race, the more recent the last conviction, the more likely that a convicted man would 
receive a prison sentence. 

Comparison of black and white convicted men with previous records reveals that 
black convicted men had less "clean time" than their white counterparts. For 
example, black (21%) were much more likely than white (12%) convicted men to 
have been convicted within three months prior to the charge leading to the current 
conviction. By contrast, white (33%) were twice as likely as black (17%) convicted 
men to have been last convicted more than four years before. Figure 8-3 illustrates 
the general pattern of more recent convictions for black than white convicted men. 



Imprisonment after Conviction 273 



Figure 8-3: Time since last conviction, by race, sentenced men witli a criminal 

record 



4 to 12 months 



1 3 to 24 months 



25 to 48 months 



More than 48 months 




□Convicted white men 
■Convicted black men 



33 



20 40 

Percent of men with a criminal record 



Source: Canadian Centre for Justice Statistics 



Criminal justice supervision 

Judges tend to impose harsher sentences on those who are already under criminal 
justice supervision when charged,^'' a pattern that was evident in our research. 
Regardless of race, convicted men who were on bail or conditionally released from 
prison on parole or mandatory supervision when charged were significantly more 
likely than those not under supervision to be sentenced to prison.* Comparison of 
the black and white sentenced samples, however, revealed no significant differences 
in the proportions of black and white convicted men recorded as under criminal 
justice control when charged.^ 



Across the entire sentenced sample, 95% of those recorded as being on parole or mandatory supervision, compared 
with 61% of those who were not under warrant when charged, received a prison sentence. The difference in 
incarceration rates between those who were (68%) and were not (59%) on bail when charged is smaller but still 
statistically significant. 



Only 2% of black and 3% of white convicted men were recorded as on parole or mandatory supervision when 
charged; 47% of black and 41% of white convicted men were recorded as on bail when charged. The proportions of 
those on bail when charged are high, of course, because one of the selected offence categories is bail violations. 



274 EXAMINING PRACTICES 

Criminal justice variables 

Several aspects of the criminal justice process may influence sentences. Some such 
influences are openly acknowledged. For example, courts usually impose a less 
severe sentence on someone who pleads guilty, especially early in the process, than 
on someone convicted after a contested trial, because the guilty plea is perceived to 
demonstrate contrition, as well as saving scarce court time and resources. Other 
factors that may affect incarceration rates, such as detention before trial, have no 
explicit justification within ordinary sentencing practice. 

We analyzed three key variables to see if they contributed to the harsher sentences 
imposed on black convicted men: the plea, crown election in hybrid offences and 
detention before trial. 

The plea 

Studies in other jurisdictions have shown that black accused are less likely to plead 
guilty than white accused and so are less likely to benefit from any resulting 
sentencing discount." Our study revealed a similar pattern: 20% of black compared 
with 11% of white men had pleaded not guilty to the charge(s) of which they were 
convicted. As the multivariate analysis reported below shows, however, this factor 
did not significantly influence incarceration rates across the sample as a whole.* 

Crown election 

For some charges the Crown attorney may choose whether to proceed by summary 
conviction or indictment. This "crown election" may be important to sentencing 
outcomes because summary convictions have much lower maximum penalties than 
convictions for charges proceeded with by indictment. In practice, maximum 
penalties are rarely awarded, but sentencing judges may view them as indicating the 
gravity of the crime.^* 

Some of the offences included in this study offered crown attorneys a choice about 
how to proceed. Most of the known drug offences, and all of the known sexual 
assaults, bail violations and "assault peace officer" offences in the sample are hybrid 
charges. The robberies, serious assaults apart from "assault peace officer" and some 
of the drug charges are indictable only. Crown attorneys had proceeded summarily 
against a higher proportion of white (61%) than black (55%) men who were 
convicted of these charges.^ 

This important finding may be explained in two ways. One is that the offences 
committed by black men convicted of hybrid offences were more serious than those 
of similar white men. While we cannot eliminate this possibility without detailed 
review of the crown files, the evidence from the analysis of offence seriousness does 



See page 278. Within the smaller subset of persons convicted of drug, sexual assault or bail violation offences, 
however, plea did have a small but significant etTect on incarceration. 

See Chapter 6 for more details. 



Imprisonment after Conviction 275 

not support it. Another possibility is that crown attorneys, perhaps after discussion 
with pohce or defence counsel, were simply more inclined to proceed summarily on 
charges against the white accused who were later convicted. If so, their decisions 
may then have independently contributed to differential sentencing. 

Imprisonment before trial 

Consistent with the findings of many sentencing studies, the analysis revealed a 
strong relationship between imprisonment before trial and after conviction, 
regardless of race. We found that 81% of convicted men who had been denied bail, 
compared with 63% of those ordered released at a bail hearing and 16% of those 
released by the police, received a prison sentence. 

This relationship would account for some racial disparity in sentencing since white 
(30%) were almost twice as likely as black (16%) convicted men to have been 
released by the police, while 39% of black but only 29% of white convicted men 
had been ordered detained before trial.* We also investigated the possibility of racial 
disparity at sentencing beyond that consistent with earlier bail decisions. First, the 
entire convicted sample was divided into three groups according to pre-trial status: 
released by the police, released after a show cause hearing and detained. We then 
compared the sentences imposed on black and white men who had the same pre-trial 
status. 

This analysis indicated that white (63%) and black (63%) convicted men released 
after a show cause hearing were equally likely to be sentenced to prison. Similarly, 
no statistically significant difference was found in the incarceration rates of white 
(84%) and black (90%) convicted men who had been detained. By contrast, the data 
revealed a substantial difference in the percentages of white (11%) and black (27%) 
convicted men who had been released by the police but subsequently received a 
prison sentence (Figure 8-4). 

This striking finding of higher incarceration rates for black than white men who had 
not been detained before trial is difficult to explain. While the offences of the black 
men may have been more serious, this explanation is unconvincing given the lack of 
supporting evidence. Another possibility is that the white men were more likely than 
the black men to be well represented by a lawyer who could raise mitigating factors 
with the sentencing judge. Without more information, however, any such 
explanation is speculative. 

Social factors 

Judges may consider "age, mode of life, character and personality"^' when passing 
sentence. While judges may vary the weight they attach to such factors or not 
consider them, evidence abounds that young, poor persons with "unsettled" lifestyles 
generally fare worse than others at sentencing.'* 



See Chapter S for data on the entire original sample of accused. 



276 EXAMINING PRACTICES 



Figure 8-4: Imprisonment rate after conviction, by race and pre-trial status 



Released by the police 



Released on bail 



Detained 



11 




63 




aConvlcted white men 
■Convicted black men 



84 




20 40 60 80 100 
Percent imprisoned 



Source: Canadian Centre for Justice Statistics 



The Commission had no means of assessing the character or personality of the men 
in our sample, but we did gather data on employment status, employment type, 
welfare status, place of residence and single status. These factors were first tested to 
see whether they appeared to influence sentencing outcomes, regardless of race. We 
then looked for differences between black and white convicted men that might 
account for differential incarceration rates. Finally we compared sentencing 
outcomes for black and white convicted men who shared the same attributes. 

These analyses showed that incarceration rates varied with both employment and 
residential status. Unemployed (76%) were much more likely than employed (50%) 
convicted men to be sentenced to prison, and those without a fixed address (86%) 
were much more likely than accused with a fixed address (58%) to receive a prison 
sentence. By contrast, we found no significant relationships between incarceration 
rates and welfare status,* employment type or marital status. 

Comparison of the white and black sentenced samples indicated that the two groups 
differed only regarding employment status among social factors. The data showed 
that 44% of white and 62% of black convicted men were described as unemployed. 
This finding suggests that consideration of employment status as part of "mode of 



Only a tiny proportion of the sample (4%) was recorded as being on welfare; 60% were unknown. The result may 
have been different had more information been available about the "unknowns." 



Imprisonment after Conviction 277 



life" may have indirectly contributed to harsher sentences for black than white 
convicted men. 

Further analysis disclosed evidence of racial differences in the incarceration rates of 
employed and single convicted men. The data showed that 58% of black employed, 
compared w ith 45% of white employed convicted men received prison sentences, as 
did 71% of single black compared with 58% of single white convicted men. There 
were no statistically significant differences in the incarceration rates of black and 
white convicted men who shared other attributes. 

Direct and indirect racial discrimination 

These detailed comparisons reveal notable differences between black and white 
convicted men: 

• Black convicted men were less likely than their white counterparts to have a 
criminal record, or a lengthy record, but those with a record were more likely 
than white convicted men to have a recent conviction. 

• Black convicted men were more likely than their white counterparts to have 
contested the charge, been detained before trial, and been prosecuted by 
indictment. 

• Black convicted men were more likely than their white counterparts to be 
described as unemployed. 

Some of these differences are consistent with harsher sentencing of the black men, 
some are inconsistent, and others raise the possibility that discrimination earlier in 
the criminal justice process was transmitted into sentencing. To clarify the 
relationship between these differences and racial discrimination at sentencing, we 
conducted multivariate analyses of the entire sentenced sample and the sub-sample 
of those sentenced for drug, bail violation and sexual assault offences. These 
analyses allowed us to see if racial differences in sentencing remained when all the 
other factors identified in the detailed comparisons were simultaneously taken into 
account. 

We found that - 

• within the entire sentenced sample, race did not account for any more of the 
disparity in sentences than was due to differences in pre-trial detention and 
employment status. This finding indicates that unemployment and detention 
before trial had an indirectly discriminatory influence on judges. 

• within the sub-sample, race had a small but statistically significant influence on 
sentencing decisions beyond the effects of other factors. This finding indicates 
that some black convicted men were sentenced to prison when white convicted 
men with the same personal and case characteristics were not sentenced to 
prison. 



278 EXAMINING PRACTICES 

• within the sub-sample, unemployment, detention before trial, not-guilty pleas, 
and prosecution by indictment were related to the likelihood of prison sentences. 
These findings indicate that apparently neutral factors, which are not directly 
related to race, indirectly contributed to higher incarceration rates for black than 
white convicted men. 

Disparity in prison terms 

The evidence of discrimination in the decision to incarcerate has complex 
implications for the length of prison terms. If, for example, judges target black 
convicted persons for harsher treatment than white convicted persons, then black 
people may receive longer as well as more frequent sentences. If, on the other hand, 
direct discrimination is mostly due to unexamined assumptions and other subtle 
factors, black people may receive shorter sentences than white people who are 
imprisoned. This is because the differential incarceration rates mean that the 
circumstance of the offences and the records of some black convicted persons would 
not have resulted in imprisonment had they been white. These convicted persons, 
while thought to deserve a prison sentence, would likely be perceived as deserving 
shorter prison terms than the white convicted persons who are incarcerated. 

Another reason for anticipating shorter prison terms for black men in this study is 
the legacy of the bail decision. Many judges take account of pre-trial custody when 
determining the length of a prison sentence, giving "credit" for time served before 
the trial. Depending on the judge and the offence, prison sentences may be 
discounted by up to two days for every day spent in jail before the trial. Since black 
convicted men in the sample were more likely to have been imprisoned before their 
trials (and to have been jailed for longer periods), they would be more likely than 
their white counterparts to receive credit for pre-trial detention. 

To investigate these possibilities, we compared the terms imposed on the 279 white 
and 264 black men who were sentenced to prison. The basic findings showed that 
across the sample as a whole the average prison terms of black prisoners (212 days) 
were significantly shorter than those of white prisoners (339 days). A statistically 
significant difference was also found for the drug offence sample: the average 
sentences of white prisoners (183 days) were almost twice as long as those of black 
prisoners (95 days).* 

Figure 8-5 illustrates the pattern within the entire imprisoned sample more clearly 
than the average sentences. It shows that 51% of black and 46% of white prisoners 
received sentences of one to 60 days, while 25% of black and 35% of white 
prisoners were sentenced to more than 180 days. 



White prisoners sentenced for sexual assaults, other serious assaults and robberies also received longer sentences, but 
the differences were not statistically significant. Within the bail violation sample, however, the sentences of black 
prisoners were longer, but again the difference is not statistically significant. 



Imprisonment after Conviction 279 



Figure 8-5: 

r 

1 to 60 days . 

61 to 90 days ■ 

91 to 180 days | 

More than 180 days . 

h 


Source: Canadian Cent 


Sentence 


lengths, by race, imprisoned sample 






46 






^^^^^^51 




-± 






9 




White prisoners 
,aBlack prisoners 








^■12 






3S 






P^ 




20 40 60 
Percent of ttiose imprisoned 

T9 for Justice Statistica 





These basic findings are consistent with judges perceiving black people found guilty 
as less serious offenders than convicted white people who receive a prison term, or 
discounting sentences of convicted black people to take account of time served 
before trial. To see if racial differences in sentence length remained after accounting 
for relevant factors, we conducted multivariate analyses of the entire sentenced 
sample and a sub-sample of those incarcerated for drug charges, sexual assaults and 
bail variations.* These analyses showed that - 

• within the entire incarcerated sample, race had no effect on length of prison 
term, once pre-trial detention and aspects of criminal record were taken into 
account. This finding suggests that the shorter prison terms of black prisoners 
were mostly due to time spent in custody before trial and less serious criminal 
records. 

• within the sub-sample, race had a direct effect on sentence length independent of 
the effect of time served before trial or criminal record. This finding is 
consistent with the possibility that sentencing judges viewed at least some black 
accused found guilty whom they incarcerated as less serious offenders than 
white men incarcerated for the same offence types. 



We did not compare in detail factors such as criminal record or aspects of criminal justice processing that could 
influence sentence length, because the incarcerated sample is relatively small. 



280 EXAMINING PRACTICES 

Differential imprisonment: conclusions 

Not every factor that might have influenced sentencing judges was measured in this 
study. We had no way of observing the "attitude," "character" or "personality" of 
the convicted men,^' nor could we assess whether "deterrence" or "mercy" ^° were 
factors in particular cases. Though we cannot eliminate the possibility of systematic 
differences between the black and white sentence samples regarding these factors, 
their subjective nature suggests that any such difference would be largely due to 
perception. 

Regarding "objective" characteristics of offences and previous criminal histories that 
might influence sentencing, the two groups were well matched. Only with respect to 
criminal record did the black and white sentence samples differ significantly: the 
evidence showed that black convicted men were less likely to have a record or to 
have a lengthy record. Yet judges were more likely to resort to imprisonment to 
punish black than white men. 

Among those imprisoned, the less serious records of the black convicted men, 
together with time served in pre-trial custody, contributed to shorter prison terms. In 
addition, less serious circumstances for the offences of black than white convicted 
men may have been included among the sample of those imprisoned for certain 
offence types. Thus the shorter sentence lengths of black convicted men are 
consistent with their higher incarceration rates both before and after trial. 

These findings demonstrate that judges' reliance on the apparently neutral factors of 
employment status and detention before trial contributed to the higher incarceration 
rates of the black sentence sample. We also found an unexplained differential, not 
due to gravity of charge, record, plea, crown election, pre-trial detention, 
unemployment or other social factors. In short, some black prisoners would not have 
been sentenced to prison had they been white. This difference can only be attributed 
to direct racial discrimination. 

The findings of differential incarceration rates do not show direct racial 
discrimination in sentencing across the full range of criminal charges. The study was 
not designed to test such a hypothesis, and its results should not be generalized in 
this way. While similar patterns of direct discrimination may be found with offences 
not documented here, they are unlikely to appear across all offences. In other words, 
these findings suggest that direct discrimination in sentencing sufficient to create 
patterns of differential imprisonment is associated with specific offences. Nothing in 
these findings, however, indicates that indirect discrimination arising from 
employment status or differential detention before trial is limited to particular 
offences. 

What explains these findings of differential incarceration? 

In the vast majority of cases, especially in the busy courts of Metropolitan Toronto, 
judges must decide on sentences quickly and generally without adequate 



Imprisonment after Conviction 281 



information, especially regarding the range of available community-based sentencing 
options. Judges are expected to balance vague and conflicting goals of punishment 
and to make complex assessments about accused persons and community needs such 
as the "protection of society/' They depend on crown and defence or duty counsel 
(if available) for facts about the offence and offender, and their assessments may 
draw heavily on information collected by probation officers. 

Lack of relevant information, complex criteria and reliance on the work of others 
obviously do not compel or excuse discriminatory sentencing. However, they 
establish conditions in which unexamined assumptions and stereotypes may become 
influential. For example, a judge who is told by a crown attorney that a convicted 
person is foreign-born may think a harsh sentence is warranted to teach respect for 
the Canadian system.' Or a judge whose court is in a culturally diverse area and 
who sees many persons from a racialized group charged with the same offence may 
implicitly associate that group with the offence, forgetting that white people in other 
areas commit the same crime. Once the association is made, the judge may 
subconsciously rely on stereotypes rather than facts when sentencing offenders from 
that group. 

In addition, a judge with little personal experience outside his or her own cultural 
group may have difficulty assessing body language and other forms of implicit 
communication or even the accents of persons from another culture. This may result 
in misreading the attitude, personality or character of an accused person from a 
racialized group and thus making unduly harsh judgments. Repeated frequently 
enough, such judgements, together with reliance on stereotypes and unwarranted 
assumptions, are likely to result in patterns of differential sentencing. The following 
passage indicates the importance of constant vigilance to avoid this danger: 

[As a result of learning about the problem] one young stipendiary magistrate has 
told me that he is now so well aware of the risks of unconscious discrimination 
that before he passes a sentence on a black defendant he always carries out the 
mental check of asking himself whether he would have passed the same 
sentence on a white defendant." 

Recommendations 

Judges have a special role to play in ensuring equality before the law in the 
outcomes as well as the process of sentencing, but they should not be expected to 
work alone. Everyone involved in sentencing must help to guard against racial 
injustice in the process. Changes in four key areas of the sentencing process would 
considerably reduce the risk of differential incarceration: 

• guidelines for the exercise of judicial discretion 



See examples given in Chapter 7. 



282 EXAMINING PRACTICES 

• judicial education on the consequences of prison sentences and the availability of 
community-based alternatives 

• guidelines for the exercise of crown attorney discretion 

• direction for probation officers preparing pre-sentence reports 

Judicial discretion at sentencing 

Disparity in the exercise of sentencing discretion was a major concern of the 
Canadian Sentencing Commission in its 1987 report (although racial differentials in 
sentencing outcomes was not specifically within its mandate). The Sentencing 
Commission identified several "deficiencies" in the sentencing system that may 
contribute to unwarranted disparity, including lack of a uniform approach to the 
"theory, purpose and principles of sentencing," inadequate direction in sentencing 
law, "acceptance of the concept of individualized sentencing" and unaccountable 
charge management practices by police and prosecutors.^^ The Commission's 
thorough and detailed report proposed many reforms, most of which were based on 
the twin principles of restraint and proportional responses to harm. Its most 
ambitious proposals were presumptions to restrict the use of prison sentences for 
many offences and a special sentencing commission to maintain uniformity across 
Canada. After lengthy consideration. Parliament partially adopted the principles of 
proportionality and restrained imprisonment, but effectively rejected reforms that 
would have provided more systematic guidance on appropriate sentences. 

Our Commission has no mandate over sentencing policy, which is within federal 
jurisdiction. But our findings clearly demonstrate the need for reforms to promote 
racial equality at this key stage of the criminal justice system. 

Guideline judgments 

One avenue of reform would be for the Ontario Court of Appeal to reconsider some 
of its sentencing principles in light of our findings that apparently neutral factors 
have an adverse impact on black accused. The Court might, for example, reconsider 
the relevance of factors such as employment to mitigation, the interpretation of 
guilty pleas as signs of "remorse," and whether its views of sentencing for drug use 
and petty trafficking are factually based. The Court could identify issues coming 
before it that provide opportunities to reduce differential sentencing outcomes and 
sit as five-judge panels.* 

The Ontario Legal Aid Plan could provide considerable assistance to the Court in 
this respect. Additional funding should be provided to the Plan to permit 
identification and preparation of cases that raise significant issues for racial equality. 
This initiative should be publicized and funding should be sufficient to establish a 



The British Columbia Court of Appeal has done this several times in the past few years, to reconsider the policies 
underlying its previous sentencing decisions. See, for example, R. v. Preston (1990) 79 C.R. (3d) 61; R. v. Sweeney 
(1992) 71 C.C.C. (3d) 47. 



Imprisonment after Conviction 283 

thorough evidentiary record, including expert testimony if necessary, during the 
sentencing hearing, and also to support appeals. 

Intervenor funding for sentencing appeals on these cases should be made available 
to clinics with expertise in responding to systemic discrimination, and to other 
interested groups. If granted leave to intervene, these organizations could file briefs 
drawing on empirical and other evidence of systemic discrimination. For cases 
involving drug and other charges handled by federal prosecutors, the Attorney 
General of Ontario should seek intervenor status to ensure that data on systemic 
discrimination is placed before the Court of Appeal. 

8.1 The Commission recommends that - 

a) the Ontario Legal Aid Plan be specially funded for a program of test cases 
that may contribute to greater racial equality in sentencing. 

b) the Plan publicize this special initiative to lawyers, legal clinics and 
interested community groups. 

c) intervenor funding be available from the Plan for legal clinics and other 
interested groups to seek leave to raise systemic issues regarding racial equality 
before the Court of Appeal. 

d) the Attorney General of Ontario seek intervenor status on sentencing 
appeals from federal prosecutions to submit evidence of systemic 
discrimination. 

Credit for pre-sentence custody 

Credit for time spent in custody prior to sentencing is particularly significant to 
convicted black people, who are more likely than others to be imprisoned both 
before and after trial. While the Commission hopes implementation of our other 
recommendations will change this propensity, safeguards should be maintained in 
case differential imprisonment before trial continues, perhaps on a smaller scale. 

Ontario judges have discretion over whether to give credit and, if so, how much for 
time spent in custody prior to sentencing, except when the person receives a life 
sentence (in which case credit is automatic). The Criminal Code gives no direction 
on this issue, and the Ontario Court of Appeal, while indicating that some credit 
should generally be given, does not require it. Consequently, judicial practice may 
vary considerably. Some judges routinely grant one day credit for each day in 
custody; some more than one day. Others may refuse to give credit when they 
believe that the sentencing decision must result in imprisonment. Even though the 
time spent in pre-trial detention may be greater than the appropriate sentence, all or 
partial credit might be withheld. In addition, since judges are not required to take 
account of pre-sentence custody, the same judge may make different judgments from 
case to case about adjusting the sentence. Such variation is highly unsatisfactory and 
may result in considerable disparities. 

Other jurisdictions, such as the United States'' and England,''' have a standard rule 
granting credit of one day less in sentenced custody for each day spent in prison 



284 EXAMINING PRACTICES 

before sentencing. Parliament has been urged to adopt this approach for all 
sentences by the Canadian Sentencing Commission and other organizations 
interested in reforming the criminal justice system. Unfortunately, the absence of 
any provision for crediting time served in the recent revisions to the Criminal Code 
suggests that Parliament is unlikely to act in the near future. 

The Commission agrees with the National Criminal Justice Section of the Canadian 
Bar Association that formalizing such credit "would eliminate unwarranted disparity 
and provide for increased certainty in sentencing practices."" In general, each day 
spent in custody in connection with the offence should be treated as one day of a 
prison sentence. Consistent with the principle of restraint, however, judges should 
retain the discretion to grant more than one day credit where they believe a larger 
award is justified. 

In view of our findings, granting credit for pre-sentence incarceration has important 
consequences for racialized persons. The Ontario Court of Appeal should reconsider 
this issue in order to establish clear guidelines for sentencing judges. 

References to deportation 

We received persistent complaints that some sentencing judges recommend removal 
from Canada of convicted persons who are not Canadian citizens. Judges have no 
power to order deportation during or after sentence and such remarks are widely 
perceived as evidence of discrimination against racialized people. On occasion these 
comments have been reported in the media, where they may contribute to public 
anti-immigrant sentiments that are routinely directed at many black and other 
racialized persons. 

The only legitimate reason for a sentencing judge to refer to deportation is if a 
deportation order has already been issued and the convicted persons, through 
counsel, asks for a deportation recommendation to be endorsed on the warrant of 
committal. In effect, this allows the existing order to be executed more quickly. 
Otherwise it seems entirely inappropriate for a judge even to comment on such 
matters. Parliament has assigned decisions about deportation to specialized tribunals, 
which may consider factors unknown to judges passing sentence. References at 
sentencing to the desirability of removing persons from Canada are gratuitous and 
may reflect or be perceived as reflecting systemic racism. 

Judges have wide latitude to express their views while fulfilling their judicial role. 
However, racist comments fall outside that role and constitute judicial misconduct, 
which should prompt complaints to judicial councils. The Ontario Government is not 
able to restrain judges from making such comments. However, the Ontario Court of 
Appeal can denounce them and should be vigilant in doing so whenever possible. In 
particular, it should establish that it is wrong in law for a sentencing judge to 
recommend deportation when passing sentence. 



Imprisonment after Conviction 285 

Judicial education 

Judicial education, a central feature of modern judiciaries, has a vital role in helping 
judges avoid differential imprisonment at sentencing. Within Ontario, the Chief 
Judge is responsible for the continuing education of provinciaily appointed judges.'^ 
The stated goals of such education are to maintain and develop professional 
competence and social awareness, and to encourage personal growth. 

While these legislative provisions" are recent innovations, the Provincial Division 
also has a well-established annual three-day seminar mostly devoted to sentencing 
principles and practices. In addition, each judge of this court is expected to attend a 
week-long refresher course every three years at which sentencing issues may be 
discussed.' The justices of the General Division meet twice yearly for a two-day 
educational seminar, one session of which is an update on criminal law and 
sentencing. To keep judges and justices updated on changes in sentencing, both 
courts, through their research facilities, provide judges with regular summaries of 
recent sentencing decisions of the Ontario Court of Appeal. 

Current programs, plus the Chief Judge's plan for continuing education, lay a solid 
foundation for judicial education on the problems raised by Commission research. 
One obvious need is for judges to learn how to prevent the exercise of their 
discretion (or that of other criminal justice professionals) from causing or being 
perceived to cause unjust imprisonment of black and other racialized people. We are 
confident that Ontario judges are anxious to address these challenges and we suggest 
ways of doing so in Chapter 12. 

Specific education on the practical implications of sentencing choices would also be 
beneficial. Judges often lack crucial information on local programs for serving 
sentences in the community. Sometimes the perception that no suitable community- 
based program exists may result in incarceration of someone whom the judge would 
have released on condition that the person attend a well-structured program. 

The longstanding absence from the criminal justice system of agencies that 
specialize in serving racialized communities, together with many judges' distance 
from these communities, makes it particularly likely that community-based options 
for black and other racialized people may be unknown. While comprehensive pre- 
sentence reports on individual accused may address this problem to some extent, 
judges should not be wholly dependent on probation officers for information that is 
so important to fairness in sentencing. 

A more systematic solution is for regional senior judges to maintain a catalogue of 
services available for persons serving sentences in the local community. Extensive 
outreach is required to ensure that the catalogue covers all local communities. Local 



As part of this course, judges have visited penitentiaries in the Kingston area to meet prisoners and staff, observe 
parole hearings, and see some of the consequences of imposing prison sentences that are served in federal 
institutions. 



286 EXAMINING PRACTICES 

administrative judges should meet witii community representatives to identify their 
needs and consider ways of meeting them. The catalogue should detail the main 
client groups of community agencies, services and programs offered, and languages 
in which services are provided. The catalogue should be kept up to date, distributed 
to judges and circulated to the probation service. It should also be available for 
review by lawyers and members of the public attending the courthouse. 

Education about non-prison options for sentencing may also be promoted by sharing 
experiences of local services. Regional senior judges should prepare an annual 
report that describes and evaluates local services for community dispositions. These 
reports should be filed with the Chief Judge and be available to judges of trial and 
appellate courts, the provincial Attorney General and the federal Department of 
Justice, as well as to members of the public. The Chief Judge should analyze the 
data from across Ontario and compile reports to distribute to all regions and share 
with local communities. 

8.2 The Commission recommends that - 

a) regional senior judges maintain an up-to-date catalogue of community 
services available for non-prison sentences. The catalogue should be distributed 
to all sentencing judges at local courts, circulated to local probation offices and 
made available to lawyers and members of the public attending courthouses. 

b) regional senior judges prepare an annual report on local services for non- 
prison sentences that should be filed with the Chief Judge for analysis and 
distribution. 

Judicial education about the consequences of incarceration, especially within the 
provincial prison system, is also important. The provincial system holds prisoners 
sentenced for up to two years and offers correctional programs that may be 
important to rehabilitation. Most sentenced prisoners are serving much shorter terms, 
however, and in practice many programs are not available to them. Consequently a 
short sentence may simply mean unproductive time spent in overcrowded and 
stressful conditions, and disruption to employment and family relationships. Of 
course a judge may genuinely think a particular case warrants a short custodial 
sentence, but this decision should be based on full information about how local 
provincial institutions manage prisoners on short sentences. 

Structured programs in which judges visit provincial prisons were introduced in 
1994. This worthwhile exercise should be a key component of judicial education for 
all sentencing judges. Visits to provincial prisons should involve meetings with 
prisoners, including those serving short sentences, and correctional staff, and 
observation of parole and temporary absence hearings. 

8.3 The Commission recommends that - 

a) the Chief Judge of the provincial division and the Chief Justice of the 
general division establish programs for judges to visit provincial adult and 
youth institutions in the regions where the judges sit. 



Imprisonment after Conviction 287 



b) educational programs should provide for judges who preside over criminal 
cases to make such visits within one year of their appointment and at least 
every five years thereafter. 

Crown attorney discretion at sentencing 

Crown attorneys provide judges with information that affects sentencing and may 
also give an opinion on what sentence would be appropriate. In their legal role as 
ministers of justice, crown attorneys are responsible for ensuring that all relevant 
information is placed before the judge, whatever its implications for sentence. In 
practice, however, unless an agreement on a sentencing submission has been 
reached, defence or duty counsel normally present mitigating factors that may lead 
the judge to be lenient, while crown attorneys present aggravating factors that could 
result in harsher sentences. If pre-trial discussions have been successful, crown and 
defence counsel may submit a joint recommendation to the judge. 

Crown attorney discretion, like judicial discretion, should be governed by the 
fundamental principles of equality and restraint. In some circumstances, these 
principles require crown attorneys to take the initiative; in others, they may simply 
need to show flexibility. The role of crown counsel in sentencing has recently been 
described by Judge Barry Stuart: 

The Crown is the voice of the community, and to be effective this voice must 
be informed and sensitive to the particular circumstances of each case. 
Sentencing hearings, especially hearings in which the Crown seeks a significant 
jail sentence, call upon a commitment of time, skill and imagination that 
parallels or exceeds the demands of trials. Until all involved in sentencing rise 
to the challenge, courts will continue to squander public funds by employing 
sentencing tools based on incomplete and misleading information. Mistakes in 
sentencing ... can hinder the rehabilitative potential of individuals and in doing 
so adversely affect families and communities. Competent, well-prepared Crown 
sentencing submissions serve the best interests of the court, the community, the 
victim and the offender." 

Skill and sensitivity in the exercise of crown attorney discretion at sentencing, as at 
other stages of the justice system, is largely a matter of training and careful 
monitoring for evidence of problems (addressed in Chapter 12). In addition, specific 
guidance to crown attorneys in two key areas would enhance fairness in the 
sentencing process. 

The first area concerns unrepresented convicted persons who were imprisoned 
before their trials. Verified information about the amount of time spent in custody is 
often unavailable to the sentencing judge.' Obviously, a judge who does not know 
of the pre-trial imprisonment is unable to give an appropriate "discount" in a prison 



This problem is particularly likely when the accused is granted bail at a show cause hearing but remains in prison 
because of inability to meet a condition of release See Chapter 5. 



288 EXAMINING PRACTICES 



sentence. Crown attorneys may prevent this injustice by obtaining and presenting 
information about pre-trial detention to the court. 

The second problem concerns crown discretion in sentencing submissions that 
involve a "discount" for a guilty plea. As noted above, this factor may contribute to 
differential incarceration rates. The Crown Policy Manual strongly promotes 
discounting: 

As an early guilty plea generally signals remorse and saves resources, it will 
normally enable Crown counsel to submit to the court the bottom end of the 
range of sentence appropriate to that particular offence and offender .... 
Accordingly, the earlier that a guilty plea is entered, the greater will be the 
consideration given to the accused by Crown counsel .... On a trial date or 
preliminary hearing date, barring a material change in circumstances. Crown 
counsel shall seek a higher sentence in the appropriate range than that which 
was offered prior to the setting of the date. The attendance of witnesses and the 
scheduling of court time undermines the responsiveness of the justice system, 
results in both inconvenience to the public and a waste of limited resources, and 
calls into question the accused's remorse." (emphasis added) 

This policy should not be applied too rigidly, especially when an accused is 
unrepresented. Many accused persons proceed to trial in Ontario without legal 
representation* and the most recent funding crisis of the Legal Aid Plan suggests 
that the proportion of unrepresented persons is likely to rise. These accused may 
have little understanding of court proceedings, still less of the possibility of 
negotiating with a crown attorney before a date set for attendance at court. It is 
patently unjust to penalize these accused who do not know the system for waiting 
until a court appearance to indicate an intention to plead guilty. 

The Crown Policy Manual appears to have overlooked this predicament. While it 
states that a "material change in circumstances" justifies not pursuing a higher 
sentence for a later plea, it treats these as legal and administrative problems within 
the justice system - 

including but not limited to: the unavailability of full disclosure to Crown 
counsel and/or defence counsel prior to the set date; a reassessment of the 
strength of the Crown's case having regard to all the witnesses; or a change in 
the law or a reassessment of the impact of existing law.^" 

The policy should be amended to clarify that when an accused is unrepresented, 
crown counsel should not seek a higher sentence simply because an accused does 
not indicate an intention to plead guilty before a trial or preliminary hearing date is 
set. A safeguard against crown attorneys seeking a higher sentence for the late plea 



Ontario Legal Aid Plan officials estimate that only, about 30 percent of those charged with criminal offences in 
Ontario are represented by a lawyer retained under a legal aid certificate. Of course some convicted men hire their 
own lawyers and others may be assisted by duty counsel. {Telephone interview with George Biggar, Deputy 
Director.) 



Imprisonment after Conviction 289 

of person who does not understand the process should be built into the sentencing 
hearing. This could be achieved by requiring crown counsel to state on the record in 
open court the reasons for departing from the Manual by seeking more than the 
minimum sentence appropriate to the offence, offender and circumstances when a 
guilty plea was entered. 

8.4 The Commission recommends that the Crown Policy Manual - 

a) require crown attorneys to obtain and present to a sentencing judge 
information about any time spent by a convicted person in pre-sentence 
custody. 

b) direct that when a convicted person is unrepresented, crown counsel should 
not seek a higher sentence simply because the person does not indicate an 
intention to plead guilty before a trial or preliminary hearing date is set. 

c) direct that when seeking more than the minimum appropriate sentence for a 
similar offender for a similar offence committed in similar circumstances, a 
crown attorney state the reasons in open court. 

Pre-sentence and pre-disposition reports 

A judge may order a pre-sentence report (called a pre-disposition report if the 
convicted person is a youth) to "assist the court in imposing sentence." The judge 
makes the report available to crown counsel and the convicted person, and provides 
both with an opportunity in open court to disagree with its factual content, 
interpretations and recommendations. ■*' 

Research on pre-sentence reports suggests that they significantly influence 
sentencing: rates of concurrence between the recommendations of probation officers 
and the sentence imposed are high."*' For example, an Alberta study reports that 
judges agreed with probation officers in 80 percent of cases. ^"^ A Yukon study 
reports a concurrence rate of 85 percent, with the judge more likely to impose a 
harsher sentence than recommended than a lighter one."' 



44 



The close relationship between report recommendations and sentences raises the 
question of the extent to which pre-sentence reports contribute to differential 
incarceration. Canadian research to date has focused on sentencing of Aboriginal 
offenders. John Hagan's research in Alberta suggests that probation officers" 
perceptions of Aboriginal offenders as less co-operative or less remorseful than 
others tended to result in less favourable assessments and thus recommendations for 
harsher sentences. However, a study in the Yukon revealed no evidence of either 
harsher or more lenient recommendations for Aboriginal offenders."' 

Studies in other jurisdictions have examined relationships between pre-sentence 
reports and differential sentencing of black and other racialized persons. Some 
English research suggests that probation officers are less iikely to recommend Afro- 
Caribbean people for probation because the officers do not know how to deal with 
them and view them as troublesome or unco-operative. "'" Another potential problem 
is that white probation officers may prefer not to work with Afro-Caribbean clients, 



290 EXAMINING PRACTICES 

whom they perceive as "high risk," and may therefore avoid recommending 
sentences that might result in probation supervision of Afro-Caribbean people."' 

Some researchers have identified subtle factors in pre-sentence reports that may 
contribute to harsh sentences for black offenders. One analysis of English pre- 
sentence reports and probation officer "culture" and thinking about black people 
concluded that these reports were "a dangerous medium for conveying information 
about ethnic minority cultures.""^ 

Another found that pre-sentence reports rarely took account of reasons for offending 
such as poverty, structural inequalities'" and racism, tending instead to explain 
deviant behaviour of black offenders in terms of personality, family and school 
problems.'" As one researcher notes, " ... this kind of colour-blind approach fails to 
recognize that the black life experience is fundamentally different from white 
experience in our society and that [tlie] difference is due to racism."^' 

The Commission did not find any Ontario research into racial differentials in the 
content of pre-sentence reports and related racial differences in incarceration rates. 
The need for detailed research in this area became apparent only late in the 
Commission's mandate. Our findings in relation to sentencing highlight the 
importance of such research to securing racial equality in sentencing. 

8.5 The Commission recommends that Ontario correctional ministries and the 
Ministry of the Attorney General conduct research into race differentials in 
pre-sentence and pre-disposition reports, and into the relationship between pre- 
sentence and pre-disposition reports and sentencing outcomes. 

We raised the question of potential bias in pre-sentence reports in a focus group of 
experienced white probation officers from five offices in areas where demographics 
are rapidly changing. While participants acknowledged that cultural differences 
sometimes made their jobs more complicated, most felt that, even in the absence of 
training, they had adapted to the diversity of their clientele. The officers noted that 
most of the information in their reports is gleaned from reports of police officers 
and school officials, and in interviews with people who know the accused such as 
family, friends and employers. They felt confident that they could handle any biased 
comments appropriately and produce factually accurate reports. 

Participants had strikingly different responses, however, to examples of comments in 
pre-sentence reports that draw on stereotypes or implicitly racialize convicted 
persons. Some perceived no problem in reproducing emotive language from their 
sources about a person said to belong to a "posse" or "Latin American" gang, so 
long as such characterizations were "substantiated" by the police. Some were more 
inclined to exclude such labelling as well as what they termed "psychological 
evaluations" convicted person's attitude or demeanour. Others felt that such 
"colourful" comments should be in the report and perceived no danger that 
including them would make them seem more credible - and damaging. 



Imprisonment after Conviction 291 



This range of views suggests a need for stronger direction on the content of pre- 
sentence reports. Even if judges ignore stereotypical comments reproduced in pre- 
sentence reports, the sentencing process should not be tainted by such commentary. 
Present Ministry of Solicitor General and Correctional Services procedures for 
preparing pre-sentence reports, while comprehensive in other ways, provide no 
assistance in dealing appropriately with stereotypical or biased comments by the 
officer's sources. 

In 1994 the Ministry of the Solicitor General and Correctional Services began to 
review procedures for writing pre-sentence reports, with "heightened sensitivity to 
native and multi-cultural issues" as one goal. Helping probation officers avoid 
transmitting bias from other sources into the sentencing process should be a priority 
of the review. Meanwhile, the Ministry should simply direct probation officers to 
request an explanation whenever a source provides material referring to a convicted 
person's race, ethnicity, immigration status, religion, nationality or place of origin. A 
probation officer who receives an unsatisfactory explanation from staff of a public 
sector agency should review the comment and explanation with an area manager of 
the probation service. If the area manager agrees that the explanation is 
inappropriate, this should be communicated to a senior supervisor in the public 
sector agency. 

8.6 The Commission recommends that Ontario correctional ministries - 

a) direct probation officers to request an explanation in writing whenever a 
pre-sentence report source provides material that refers to a convicted person's 
race, ethnicity, immigration status, religion or nationality. 

b) direct probation officers to review with their area manager any 
unsatisfactory explanation of such a reference provided by a source in a public 
sector agency. If the area manager agrees that the explanation is inappropriate, 
this should be communicated to a senior supervisor of the source. 

A broader view 

Our recommendations propose specific reforms well within the capacity and 
jurisdiction of the provincial justice system. Their implementation in concert with 
the system-wide recommendations in Chapter 12 should help to prevent imposition 
of harsher sentences on black and other racialized people than white people. 

The criminal justice system should also address the broader problem of the over-use 
of prison sentences, especially short sentences served in provincial institutions, 
because restraint is important to equality. While racial differentials in incarceration 
could be avoided by imposing harsh but equal sentences on white and racialized 
offenders, this would increase rather than reduce injustice. Those sentenced to prison 
would still represent only a tiny minority of individuals who break the law and 
generally be drawn from the most marginal sectors of society. People convicted of 
property and nuisance offences would continue to dominate sentenced admissions to 
provincial prisons. Ontario would carry on wasting millions of dollars warehousing 



292 EXAMINING PRACTICES 



people away from the community for short periods, instead of assisting them to 
avoid further offending and integrate themselves into the community. 

Over-use of imprisonment has been criticized so frequently in Canada, as elsewhere, 
that adding our voice to the chorus may seeni redundant. But the key points cannot 
be repeated too often: 

"There is no evidence that higher sentences are effective in reducing the crime 
rate."" 

"The majority of admissions to jail [in Canada] are non-violent offenders who 
do not need to be incarcerated to protect the public .... A large proportion of 
persons are incarcerated because there are no appropriate places or programs for 
them."" 

"... we send too many people to jail in [Canada]. Ever>' Royal Commission on 
sentencing in the last 159 years, and there have been many, has come to the 
same conclusion."''' 

"Growing evidence exists that, as educational centres, [Canadian] prisons have 
been most effective in educating less experienced, less hardened offenders to be 
more difficult and professional criminals." " 

"Every Royal Commission, official report and extensive study done on 
sentencing in [Canada] ... has.. .concluded that rehabilitation is unlikely to occur 
while the offender is incarcerated." '" 

These criticisms of incarceration apply with particular force to over-use of short 
sentences. While the conditions under which short sentences are served are often 
unpleasant, there is no evidence that the sentences deter individuals or reduce crime 
in the wider society. Even if prisons could deliver useful rehabilitative services, such 
as literacy or job training, a short-term prisoner is unlikely to complete such 
programs before release. Furthermore, short periods of incarceration may delay 
restitution to the victim, disrupt employment and personal relationships, and 
postpone community reintegration. 

Some relief from over-use of short sentences may come with the passage of federal 
Bill C-41, which enshrines in sentencing law the principles of restraint and 
proportionality." It directs judges not to impose imprisonment when a less 
restrictive sentence is appropriate. The systemic change necessary to reduce reliance 
on short prison sentences also requires judicial leadership, backed by support from 
other criminal justice professionals, in partnership with the community. Sentencing 
should be pragmatic and flexible. Penalties and obligations imposed on offenders 
should make the best use of the creativity and resources of the community. They 
should, in the words of Judge Stuart: 

... reflect a blend of the interests and resources of the formal justice process and 
the community. A blend that assists in stemming the shocking exponentially 



Imprisonment after Conviction 293 



rising costs of professional justice services and reducing the equally shocking 
failure to prevent crime within our communities. A blend that is achievable only 
when Counsel invests the resources and time to fit the sentence to the facts, and 
if all justice officials acquire the humility to recognize their limitations and the 
valuable contribution a community can and must make to the sentencing 
process, and to the larger more pressing objectives of individual, family and 
community well-being/* 



294 EXAMINING PRACTICES 

Endnotes 

' Bruce Archibald, "Sentencing and Visible Minorities: Equality and Affirmative Action in the 
Criminal Justice System," conference "Sentencing Now and in the Future," Halifax, N.S., 
1989. 

^ Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach - The Report 
of the Canadian Sentencing Commission (Ottawa: Supply and Services, 1987). This has also 
been noted by several Canadian inquiries such as: Report of the Committee Appointed to 
Inquire into the Principles and Procedures Followed in the Remission Service of the 
Department of Justice of Canada, chair G. Fauteux ("Fauteux Report") (Ottawa: Queen's 
Printer, 1956); Canada, Commission of Inquiry into the Non-Medical Use of Drugs, Final 
Report, chair Gerald LeDain ("LeDain Report") (Ottawa: Information Canada, 1973); 
Canada, House of Commons, Report to Parliament by the Sub-Committee on the Penitentiary 
System in Canada, chair Mark MacGuigan ("MacGuigan Report") (Ottawa: 1977); Solicitor 
General of Canada, A Summary and Analysis of Some Major Inquiries on Corrections - 
1938 to 1977 (Ottawa: Supply and Services, 1977). See also S.R. Brody, The Effectiveness of 
Sentencing, Home Office Research Study No. 35. (London: HMSO, 1976); and D.J. West, 
Delinquency: Its Roots, Careers and Prospects (London: Heinemann, 1982). 

^ House of Commons, Report by the Sub-Committee on the Penitentiary System (note 2). 

''■ See, for example: Canadian Committee on Corrections, Toward Unity: Criminal Justice and 
Corrections, report of the committee, chair Roger Ouimet (Ottawa: Queen's Printer, 1969); 
William J. McGrath, ed., Crime and its Treatment in Canada (Toronto: Macmillan, 1976); 
Heino Lilies and Barry Stuart, "The Role of the Community in Sentencing," Justice Report 8 
(1992), p. I. 

' Canadian Centre for Justice Statistics, Sentencing in Adult Criminal Provincial Courts - A 
Study of Six Canadian Jurisdictions 1991 and 1992, prepared by John Turner (Ottawa: 
Statistics Canada, 1993), ref no. 46018. 

^ Ibid., table 15 A. 

' Law Reform Commission of Canada, "Submission to the Canadian Sentencing Commission," 
quoted in Canadian Sentencing Commission, Sentencing Reform (note 2), p. 58. 

* Ibid., p. 115. 

R. V. Iwaniw: Overton (1959) 127 C.C.C. 40, adapted from 9 Halsbury (2d ed.) 256. 

Clayton C. Ruby, Sentencing, fourth edition (Toronto: Butterworths, 1994), p. 24; Roger 
Salhany, Canadian Criminal Procedure, fifth edition (Toronto: Canada Law Book, 1989), p. 
345. 

"■ This wording comes from the first Ontario legislation authorizing preparation of pre-sentence 
reports {Probation Act, R.S.O. 1922, c.l03, s.3(l)). 



9. 



10. 



13. 



Imprisonment after Conviction 295 



See generally: John Hogarth, Sentencing, as a Human Process (Toronto: University of 
Toronto Press, 1971); and Canadian Sentencing Commission, Sentencing Reform (note 2). 
See also, Thomas L. Austin, "Does Where You Live Determine What You Get? A Case 
Study of Misdemeanant Sentencing," 76 Journal of Criminal Law and Criminology (1985) 
490; T.A. McAbee and T.P. Cafferty, "Degree of Prescribed Punishment as a Function of 
Subjects' Authoritarianism and Offenders' Race and Social Status," 50 Psychological Reports 
(1982) 651. 

See Andrew Ashworth, Sentencing and Criminal Justice (London: Weidenfeld and Nicolson, 
1992), pp. 121-40; R. v. Fireman (1971) 4 C.C.C. (2d) 82 at 86 (Ont. C.A.); R. v. Ettagiak 
[1986] N.W.T.R. 203 (S.C), affd. [1986] N.W.T.R. 286 (C.A.); R. v. Capot-Blanc [1987] 
N.W.T.R. I (S.C); R. v. Beatty (1982) 69 C.C.C. (2d) 223 (Sask. C.A.); R. v. Onalik (1987) 
65 Nfld. & P.E.I.R. 74 (Nfld. C.A.); Richard Delgado, "'Rotten Social Background': Should 
Criminal Law Recognize a Defense of Severe Environmental Deprivation?" 3 Law and 
Inequality: A Journal of Theory and Practice (1985) 9. 

''' Government of Canada, The Criminal Law in Canadian Society (Ottawa: Supply and 
Services, 1982), p. 53. 

" Canadian Sentencing Commission, Sentencing Reform (note 2), p. 165. 

"^ S.C. 1995, C.22, S.6, royal assent given July 13, 1995; expected to be proclaimed in force, 
spring 1996. 

'^ Assault incarceration rates range from 54 to 85 percent, depending on the offence (Canadian 
Centre for Justice Statistics, Sentencing in Adult Criminal Provincial Courts [note 5]). 



'* See case law in Ruby, Sentencing (note 10), pp. 201-30, 491-92. 



19. 



20. 



See generally: Hogarth, Sentencing as a Human Process (note 12); and Ashworth, 
Sentencing and Criminal Justice (note 13), pp. 172-75. 

1. Brown and R. Hullin, "A Study of Sentencing in the Leeds Magistrates' Courts: The 
Treatment of Ethnic Minority and White Accused," 32 British Journal of Criminology 
(1992), 41-53. See also studies done for the Royal Commission on the Donald Marshall, Jr. 
Prosecution: D. Clairmont, W. Barnwell and A. O'Malley, "Sentencing Disparity and Race in 
the Nova Scotia Criminal Justice System," and D. Clairmont and W. Barnwell, 
"Discrimination in Sentencing: Patterns of Sentencing for Assault Convictions," 
Discrimination Against Blacks in Nova Scotia: The Criminal Justice System, Research Study, 
Vol. 4 (Halifax: 1989), appendices 4 and 5; Monica A. Walker, "The Court Disposal of 
Young Males, by Race in London 1983," 28 British Journal of Criminology (1988) 141; 
Monica A. Walker, "The Court Disposal and Remand of White, Afro-Caribbean and Asian 
Men (London) 1983," 29 British Journal of Criminology (1989) 353; Roger G. Hood, Race 
and Sentencing (Oxford: Clarendon Press, 1992); Marjorie S. Zatz, "Pleas, Priors and Prison: 
Racial/Ethnic Differences in Sentencing," 14 Social Science Research (1985) 169. 

A recent study of sentencing practices in adult provincial courts shows a 90 percent 
incarceration rate for robbery offences in Ontario. (Canadian Centre for Justice Statistics, 
Sentencing in Adult Criminal Provincial Courts [note 5].) 



296 EXAMINING PRACTICES 



22. 



23. 



24. 



25. 



26. 



27. 



Ibid. 

This is the index of seriousness used in the U.S. federal sentencing guidelines. Pub. L. No. 
98-473, 217(a), 98 Stat. 1837, 2017-26 (codified at 28 U.S.C. 991-998 (1988)); United 
States, U.S. Sentencing Commission, Guidelines Manual lAl.l, 1.9, 1.10 (1988). 

See cases discussed in Ruby, Sentencing (note 10), pp. 159-60, 344^9. 

Simba F. Landau, "Juvenile and The Police," British Journal of Criminology, vol. 21: 
January 1981; Landau and G. Nathan "Selecting Delinquents for Cautioning in the London 
Metropolitan Area," British Journal of Criminology, vol. 23: April 1983; Walker (note 20). 
See also other studies in note 20; for a detailed analysis of relationships between race and 
guilty pleas, see Celesta A. Albonetti, "Race and the Probability of Pleading Guilty," 6 
Journal of Quantitative Criminology (1990) 315. 

R. V. Iwaniw: Overton (note 9); Ruby, Sentencing (note 10), p. 24. 

R. V. Iwaniw: Overton (note 9). 



^^ See, for example: Austin (note 12); George Bridges, Robert D. Crutchfield and Edith E. 
Simpson, "Crime, Social Structure and Criminal Punishment: White and Nonwhite Rates of 
Imprisonment," 34 Social Problems (1987) 345; 1. Jankovic, "Social Class and Criminal 
Sentencing," 10 Crime and Social Justice (1978) 9; Michael Mandel, "Democracy, Class and 
Canadian Sentencing Law," 21-22 Crime and Social Justice (1988) 163. 

' These factors are cited in /?. v . Iwaniw: Overton (note 9). 

■"' This factor is cited in Salhany (note 10). 

^' Mr. Justice Henry Brooke, "The Administration of Justice in a Multicultural Society," Kapila 
Lecture by the chairman of the Ethnic Minorities Advisory Committee, Judicial Studies 
Board, United Kingdom, Nov. 18, 1993 (manuscript on file). Also quoted in Chapter 3. 

^^ Canadian Sentencing Commission, Sentencing Reform (note 2), p. 71. 

" 18 U.S. Code s. 3585. 



34. 



35. 



36. 



37. 



38. 



39. 



Criminal Justice Act, 1967 (12 Statutes 357) s.67, as amended. 

Canadian Bar Association, National Criminal Justice Section, "Submission on Bill C-4r' 
(Ottawa: November 1994), p. 26. 

Courts of Justice Act. S.O. 1994, c. 12, s. 51.10(3). 

Courts of Justice Act, S.O. 1994, c. 12, s. 51.10(3). 

R. V. Frederick Jackson, Territorial Court of the Yukon, unreported, Feb. 23, 1995, p. 11. 

Ontario Ministry of the Attorney General, Crown Policy Manual, January 1994, policy R-1 
"Resolution Discussions," paras. 5(b) and 7. 



Imprisonment after Conviction 297 



^° Ibid., para. 6(b). 

■" Criminal Code. s. 735(1). 

*'^' Edward D. Boldt, L.E. Hursh, S.D. Johnson and M. Taylor, "Presentence Reports and the 
Incarceration of Natives," Canadian Journal of Criminology (1983) 25/3 pp. 269-76. This 
study suggests that rates of concurrence between what the probation officer recommends and 
the sentence imposed are even higher in the United States. 

^^ John Hagan, "Criminal Justice on Rural and Urban Committees: A Study of the 
Bureaucratization of Justice," Social Forces 55 (3) (1977). 

'''' Boldt et al., "Presentence Reports" (note 41). 

'*' Ibid. The writers concluded that "[t]he best single predictor of a recommendation for 
incarceration is prior convictions" (p. 275). 

■'^ George Mair, "Ethnic Minorities, Probation and the Magistrates' Courts: A Pilot Study," 26 
British Journal of Criminology (April 1986): 147-155. p. 147. 

"^ Richard Green, "Probation and the Black Offender," New Community, vol. 16 no. 1 (1989), 
p. 186; Chester H. Bartoo, "Some Hidden Factors Behind a Probation Officer's 



Recommendations," Crime and Delinquency 9(3) (1963), 276-281. 



^^' Pat Whitehouse, "Race, Bias and Social Enquiry Reports," Probation Journal (1983) 30: 43- 
49. 

"" See L. Pymm and P. Lines, Report on the Birmingham Court Social Enquiry Report 

Monitoring Service (West Midland Probation Service, 1987), cited in Andy Shallice and Paul 
Gordon, Black People, White Justice? Race and the Criminal Justice System (London: 
Runnymede Trust, 1990), pp. 54-55. 

^" Green, "Probation and the Black Offender" (note 46); David Denney, Racism and Anti- 
Racism in Probation (London: Routledge, 1992). 

^' Green, "Probation and the Black Offender" (note 46), p. 182. 

" R. v. McLeod, (1993) 81 C.C.C. (3d) 83 at 94 (Sask. C.A.). 

'' Lilies and Stuart, "The Role of the Community in Sentencing" (note 4), p. 2. 

'" R. v. Pettigrew (1990) 56 C.C.C. (3d) 390 (B.C.C.A.) per Wood J.A. at 401. 

'' Solicitor General of Canada, A Summary and Analysis of Some Major Inquiries on 
Corrections - 1938 to 1977, 1977, at iv, cited in Canadian Sentencing Commission, 
Sentencing Reform (note 2), p. 44. 

'^ R. v. Preston (1990) 79 C. R. (3d) 61 (B. C. C. A.) per Wood J. A. at 78. 

" S.C. 1995 c. 22. 



298 EXAMINING PRACTICES 



'^ R. V. Frederick Jackson , Territorial Court of the Yukon, unreported, Feb. 23, 1995. 



Chapter 9 

Racism Behind Bars Revisited 



"Jail is like school, hut the only subject is surx'ival. " 

- Black prisoner in Metro West Detention Centre' 

This chapter returns to the Ontario prison system to examine its treatment of 
racialized persons. Elsewhere in this Report we have discussed how lack of restraint 
by the Ontario criminal justice system has led to high rates of incarceration of both 
tried and untried persons, most charged with or convicted of non-violent offences. 
We have also shown that black and Aboriginal persons are admitted to Ontario 
prisons at higher rates than white persons, a difference at least partly due to 
discrimination in the administration of justice. The prison system is not responsible 
for these problems, since it has no control over who is admitted to prison or how 
many people are incarcerated. It is wholly accountable, however, for how prisoners 
are treated. 

The Commission's Terms of Reference directed us to submit an interim report on 
the treatment of racial minorities in both adult and youth correctional facilities. Our 
Interim Report - Racism Behind Bars - showed that racially hostile environments, 
racial segregation among and within institutions, and failures to accommodate the 
service and program needs of black and other racialized prisoners deform Ontario 
prison systems. Underiying these specific findings of mistreatment is the general 
theme that racism behind bars may be used to intimidate black and other racialized 
prisoners, operating as an indirect method of control. For this Report, we 
investigated the extent to which systemic racism influences direct methods of 
controlling prisoners. 

Direct control in prisons is generally based on the behavioural model of the carrot 
and stick. Prisoners who are seen to conform to the norms of the institution and who 
obey the rules quickly and quietly are offered rewards such as early release through 
parole or permission to be temporarily absent during a prison term, and privileges 
while in jail. Those who are not perceived as compliant may find their privileges 
withheld or parole denied, or involuntary transfers imposed. They may also be 
subjected to institutional punishments, such as the "prison within a prison" of 



299 



300 EXAMINING PRACTICES 

segregation cells, or forcibly controlled through violence by correctional officers or 
other prisoners (sometimes provoked by staff). 

To determine which of the many rewards and penalties used to manage prisoners 
should be priorities for this inquiry, the Commission undertook extensive 
consultation. We visited adult and youth prisons in every region of the province and 
talked to correctional workers and management, spiritual advisers who work in 
prisons, representatives of community agencies involved in correctional issues and 
prisoners of diverse backgrounds. These sources all urged investigation of the same 
three issues: prison punishments, use of force by staff and access to early releases 
for adult prisoners.' 

Before documenting findings, we first set out the legal and policy framework for 
control within prisons and the institutional context. We discuss these in some detail 
because the exercise of authority inside provincial prisons is largely hidden from 
view. Policies and procedural guidelines for the use of discretionary powers are 
generally unknown, and correctional practices are wholly invisible to most 
Ontarians. Prisons are not courts; the public or the media cannot simply walk in and 
watch. Even judges, justices and lawyers involved in decisions to incarcerate have 
little exposure to the exercise of discretion inside provincial prisons. 

The next section focuses on institutional punishment. It describes the procedures 
governing punishments and the types of discretion exercised, and presents an 
exploratory study of punishment practices in selected prisons. Following that, we 
document concerns about staff violence against prisoners and describe problems we 
encountered in investigating them. Then we examine discretionary releases from 
prison. This section describes temporary absence programs and presents findings 
from a study of access to them at two provincial prisons. It also considers key issues 
in the parole system. The final section proposes changes to enhance public 
accountability in the prison system. 

The context of prison discipline and control 
Law and policy 

Although imprisonment involves the loss of some personal freedom, the law makes 
it clear that the state cannot take away all of a prisoner's rights." The Canadian 
Charter of Rights and Freedoms requires that prisoners not be deprived of "life, 
liberty and security of the person ... except in accordance with the principles of 
fundamental justice."^ They must not be "subjected to any cruel and unusual 
treatment or punishment."* They must be treated with equality. ^ The right to non- 
discriminatory treatment is also affirmed in the Ontario Human Rights Code.^ In 



The Young Offenders Act assigns control over most types of significant releases for young offenders to the courts. 

300 



Racism Behind Bars Revisited 301 

addition, rules of "natural justice" or "legal fairness" require that important 
decisions about prisoners must be made fairly and without bias/' 

Obligations and duties required by law are supplemented and reinforced by 
government policies. All ministries, including those responsible for prison services,* 
are subject to the "Policy Statement on Race Relations," which declares that 
"Racism in any form is not tolerated in Ontario."^ 

The policy of the Ministry of the Solicitor General and Correctional Services is to 

... treat inmates in a responsible, just and humane manner which recognizes their 
inlierent dignity as human beings, promotes tlieir personal reformation, development 
and socialization, and affords tliem tlie rights, pri\ ileges and protections prescribed 
by law.' 

Staff are directed to find an "equitable balance between the protection of inmate 
rights on the one hand and the legitimate safety and security concerns of the 
institution and community on the other." The policy is sensitive to the pressures that 
lead staff to favour institutional concerns over the prisoners' rights and interests. 
Ministry policy seeks to promote "equitable balance" by spelling out key principles 
to govern the treatment of prisoners: 

• Imprisonment in Ontario is a limited restriction of freedom. It does not of itself 
take away all of an individual's rights in Canadian society. 

• Prisoners are entitled to equality. Imprisonment does not take away their rights 
to be treated without discrimination. 

• Prisoners in Ontario are entitled to justice. Imprisonment does not take away 
their rights to be treated fairly. 

• Prisoners in Ontario are entitled to respect. Imprisonment does not take away 
their rights to be treated with decency. 

Thus both formal law and official policies require that prisoners be treated in 
accordance with the fundamental values of equality, fairness, accountability and 
decency. These are not extras to be accorded if time and circumstances allow, but 
should, infuse all official actions in containing, controlling and attempting to 
rehabilitate prisoners. 



When we began our work, the ministry responsible for correctional ser\'ices for adults and 16- and 17-year-olds was 
known as the .Ministry of Correctional Services. As part of the reorganization of provincial government services in 
February 1993, it was amalgamated with the ministry responsible for policing services; the department is now the 
Ministry of the Solicitor General and Correctional Services (MSGCS). The Ministry of Community and Social Services 
(MCSS) has responsibility over correctional services for youths aged 12 to 15, and has similar policies. 



302 EXAMINING PRACTICES 

institutional context 

In practice, the institutional context or environment of a prison creates constant 
pressures to elevate expedience and control over demands of law and policy. Prisons 
are "total institutions," with complex social structures and relationships formed in 
response to large numbers of people being forced to live, temporarily, in very close 
quarters, without choice or freedom. '° Officially, goals such as reformation and 
rehabilitation of prisoners are still part of the prison agenda." To those denied 
liberty and to their keepers, however, the intrusive and all-encompassing nature of 
prison life tends to create different priorities. 

Imprisonment means that prisoners lose virtually all aspects of their right to privacy. 
They live with almost every activity observable by guards of both sexes and by 
other prisoners - from toilet functions to socializing to eating to sleeping. At the 
same time, prisoners lose most choices. Many aspects of their daily lives are 
dictated - from what to read or see on television, to what clothing to wear, what 
food to eat, what work to do. Prisoners are isolated from their friends, families and 
other sources of emotional support and guidance. They are compelled to live with 
strangers, some of whom they fear. Confronted with these realities, most prisoners 
endure their confinement with only two goals: release and survival until release, 
ideally with some measure of dignity and self-respect. 

Prisons are also highly stressful environments for the people who work there. From 
their perspective, by far the most important goal of their institutional power is to 
control the behaviour of prisoners effectively. Thus, containment and order are top 
priorities. Faimess and accountability may matter to individuals in other areas of 
their lives, but inside the prison it is easy for staff and management to see them as 
secondary to their need to control prisoners and maintain order. 

The values and attitudes of correctional staff and managers towards crime, prisoners 
and minorities may also affect the culture of correctional authority. Correctional 
workers are as influenced by stereotypes or as likely to favour punitive goals as 
anyone in society. Their intimate knowledge of prisons and prisoners does not serve 
in and of itself to challenge false assumptions. Some may recognize their common 
humanity with prisoners, and question popular beliefs about "criminals" or myths 
about the criminality of certain races. Conversely, intense exposure under quite 
abnormal conditions to persons charged with or convicted of crimes may reinforce 
such beliefs and myths. It may also spawn cynicism about rehabilitation and 
disregard for the values of faimess and accountability when dealing with prisoners. 

Such toxic elements in this isolated environment are strongly associated with what 
has been aptly called "deformative risk" of prisons - the danger that prisons 
increase the likelihood that prisoners will offend again after release.'^ The principles 
for reducing deformative risk - faimess, decency, equality and accountability - are 
already part of the legal and policy framework goveming the treatment of prisoners. 
Practising these values, however, is ch^lenging because Ontario prisons hold people 
for relatively short periods of time. Time is an important factor in managing prisons 



Racism Behind Bars Revisited 303 



and prisoners, affecting every decision from the allocation of prisoners among and 
within institutions to the assistance available to prisoners preparing for parole or 
other release processes, or defending themselves against allegations of misbehaviour. 
For example, it is difficult to argue that a remand prisoner charged with misconduct 
must receive notice in writing of the case against him or her, let alone have the 
opportunity to consult counsel, when he or she may be in a particular institution for 
only a few days. 

Practices said to be standard in federal institutions to promote justice, such as 
internal grievance procedures for prisoners, may simply not be feasible for prisoners 
held on remand or serving short sentences in the provincial system. Meaningflil 
assessments of prisoners as individuals and planning programs to help sentenced 
prisoners are almost impossible. Decision-making based on patterns and expectations 
that may be stereotypes is a serious risk. 

WTiile the rapid turnovers of prisoner populations and relatively short imprisonment 
clearly pose special challenges for the provincial system, neither the appearance nor 
the practice of justice must be compromised. Because persons held in total 
institutions are highly vulnerable to arbitrary, unjust or unequal treatment, the 
protections afforded by principles of equality, fairness and accountability must be 
secured in practice as well as policy. 

Prison discipline: misconduct 

Prisoners are subject to a system of institutional punishments based on rules laid 
down by the Ministry of the Solicitor General and Correctional Services.'' Some 
rules emphasize demeanour or attitude and respect for authority;* some concern 
harm to persons or property;^ others focus on risks to security and control. * Alleged 
breaches of the rules by prisoners may be reported to the institution's 
superintendent. If, after investigating an incident and hearing from the accused 
prisoner, the superintendent is satisfied that a "misconduct" occurred, a punishment 
authorized by the regulations may be imposed.^ 



These forbid such behaviours as the "mak[ing] ofa gross insult, by gesture or abusive language" (s. 29(l)(c)), "Ieav(ing] 
a cell, place of work or other appointed place without authority" (s. 29(l)(i)), "wilful disobe[dience] ofa lawful order 
of a ministry employee" (s. 29(1 ){a)), and "wilful breach or attempt to breach any regulation or written rules .. 
governing the conduct of inmates" (s. 29(1 )(n)). 

Prisoners must not, for example, "commit or threaten to commit an assault" (s. 29(1 Xb)), commit theft (s. 29(1 )(d)) or 
damage property (s. 29(1 )(e)). 

These rules forbid attempted escapes (s. 29(1 )(h)), possession of "contraband" such as alcohol, weapons or illegal drugs 
(s. 29( 1 )(f)), and creation or incitement of "disturbance(s) likely to endanger the security of the institution" (s. 29( 1 )(g)). 

Section 29(3) provides that no Ministry oflicial other than a superintendent or authorized delegate may impose formal 
disciplinary penalties on a prisoner. 



304 EXAMINING PRACTICES 

Although the rules are strictly framed, prison discipline is highly discretionary. Staff 
are expected, first, to make the fundamental decision about whether the formal 
disciplinary process is the best method of handling a problem. Some may actively 
limit the use of their authority to punish, relying instead on other methods to 
manage conflict. Others may lack the skills or the confidence to secure co-operation 
from prisoners except by invoking discipline. 

Second, when exercising the power to punish, staff and management must interpret 
prisoners' behaviour within the meaning of the prison rules. As they make decisions 
about policing, investigation, adjudication and punishment of prisoners, staff and 
management may be motivated by many concems. They may worry about their own 
authority over individual prisoners, over specific groups of prisoners or over 
prisoners generally. They may think about the implications of using discipline - or 
not using discipline - for the atmosphere of the prison. Some staff may want to be 
seen as tough, while others are more anxious to be seen as fair. 

Fairness in the exercise of the power to punish is not, however, a matter of personal 
choice, but a requirement of law and Ministry policy. Referring specifically to 
punishment in prison, the Ministry states that 'Jair and consistent application of ... 
inmate discipline is essential [to] security, safety, and good order of institutions and 
... rehabilitative goals"''' (emphasis added). 

A consistent complaint of prisoners - male and female, adults and youths, black and 
white - is that the power to punish is not used evenly and fairly. They insist that 
correctional officers punish black prisoners, more frequently, more severely and for 
less reason than white prisoners. Correctional officers, both black and white, 
expressed many of the same concems: 

"Black inmates are more severely punished for insignificant incidents such as 
answering back to a CO (correctional officer)." 

"Twice as many blacks are put in segregation, not because they have done anything 
wrong, but because they are black." 

"Black inmates receive far harsher misconducts than white inmates due to the 
perception that black inmates are more violent or are instigators in most incidents." 

"... A white inmate may use 'profane' language towards a white officer and nothing 
happens. A few moments after, a black inmate may just suck his teeth towards the 
same officer and [he] receives a misconduct." 

A submission to the Commission by the Ontario Public Service Employees Union 
(OPSEU) which represents provincial correctional officers, includes these 
observations: 

"Punishment for offences within the institution isn't standardized. It can be pretty 
capricious. It all depends on what the officer writes on the report." 



Racism Behind Bars Revisited 305 



"As in Uie courts similar offences committed by white inmates get lesser penalties. 
Black offenders are often found guilty and punished by being sent to segregation. 
Minority inmates constitute tlie majority of those sentenced to segregation or to 
menial tasks for 'obstructive offences." 

"A lot of Caribbean inmates use singing or chanting reggae songs when tlicy are in 
tlie day area as a way of coping with incarceration ... They caji be charged with 
causing a disturbance and put in segregation or on a restrictive diet as a penalty." 

To investigate these concerns we researched case law and academic literature, 
reviewed Ministry policies and procedures governing misconducts, analyzed 
Ministry and institutional records, and consulted with staff, maitagement and 
prisoners. We also conducted a small exploratory study of how the power to punish 
had been used against white and black prisoners at selected Ontario institutions. Our 
goals were to identify practices that might be responsible for perceptions of 
unfairness and discrimination, and to see if misconducts on the files of white and 
black prisoners show racial differences in punishing prisoners. 

We begin by documenting forms of discretion that are available to prison personnel 
at each stage of the misconduct process. This review demonstrates the potential for 
institutional discipline to be used, or perceived to be used, in an arbitrary, 
discriminatory or abusive fashion. 

We then document findings from the exploratory study of disciplinary practices at 
selected Ontario prisons. These findings suggest that staff use their punishment 
power differently against white and black prisoners. Distinctive patterns appear in 
the types of misconducts and punishments recorded against black and white aduit 
prisoners of both sexes, and also in the uses of misconducts to discipline and control 
16- and 17-year-old male prisoners. As with the review of procedure, the 
exploratory study shows why current practice fails to convince prisoners, staff and 
all other concemed Ontarians that the prison discipline process manifests fairness, 
consistency, equality and accountability. 

Enforcing the rules 

Two fairly typical incidents from Ministry files serve as our reference points for the 
different types of discretion in the enforcement process. 

CASE A: Prisoner A was reported for the offence of "making a gross insult, by 
gesture, use of abusive language, or any other act, directed at any person." 
According to the reporting staff member, the incident occurred while prisoners were 
being summoned for work. The staff member stated in the Misconduct Report: 
"Inmate [A] shouted at me from his room to 'fuck off I have told him repeatedly 
to be on time for work." 

In a related document, the Occurrence Report, the staff member added more detail. 
Under the heading "re attitude and behaviour of inmates [A] and [another prisoner] 
while on [work assignment]," he wrote: 



306 EXAMINING PRACTICES 



"I have told [the] inmate named above about being ready for work on time. All I 
ever get from him was "he didn't hear the officer call him. ' He has an explosive 
attitude to people when being collected by them. I have heard him mumble to me 
before to 'fuck off." But this morning was a show of bravado to his fellow inmates 
when he swore at me." 

CASE B: Prisoner B was reported for two misconducts arising out of a single 
incident. The officer reporting the first alleged rule violation described the incident 
in the Misconduct Report in this way: "I did witness inmate [B] throw a pat of 
butter behind him in the direction of another inmate, namely inmate [Y]." In the 
Occurrence Report the officer repeated the same basic allegation and added: 

"I ordered inmate [B] to go to the search area .... I should note tliat there were about 
ten pats of butter discovered in the area that the one witnessed to be thrown would 
have landed, indicating tliat there, were numerous others thrown. Inmate [B] was 
placed on a misconduct and lodged in the Special Needs Unit [segregation cell]." 

The prisoner was charged with the misconduct "creates or incites a disturbance 
likely to endanger the security of the institution." 

The second incident occurred immediately after prisoner B had been interviewed as 
part of the investigation into the events in the dining room. B was being taken back 
to the segregation cell by two other correctional officers when, in the words of the 
second reporting officer: 

"Inmate B made a false and extremely derogatory accusation that I had called him 
'BLACKIE.' He also made very libellous and demeaning statements that I was a 
■RACIST.' He stated, in fact, 'you are the most "RACIST" person in here.' This was 
without provocation or any dialogue on my part and was completely unwarranted. 
This was wimessed by Mr. Z [a correctional officer]." (emphasis in the original) 

In the Occurrence Report of this incident, the officer repeated the statements 
allegedly made by the prisoner, describing them as "a cheap and insulting attempt to 
cause a situation by this inmate." He added: "Accusations of this nature are very 
serious and libellous whether founded or unfounded and will certainly not be 
tolerated either publicly or in the workplace." 

This second incident was recorded as "makes a gross insult, by gesture, use of 
abusive language or other act, directed at any person." 

Reporting discretion 

Staff members who reported these incidents had to decide if the prisoner's conduct 
amounted to a breach of a rule, and if so, which rule. They also had to decide 
whether to invoke institutional punishment or respond more informally. Language 
such as that allegedly used by inmate A, for example, is hardly rare inside or 
outside prisons. According to the staff member's report, he had heard the same 
words from the same prisoner on previous occasions, apparently without doing 



Racism Behind Bars Revisited 307 

anything about it* Clearly the staff member this time chose a punitive response by 
labelling the behaviour a breach of the rules, categorizing it as "gross insult" and 
reporting it as a misconduct. 

Such choices are even more evident in the incidents involving prisoner B. Throwing 
one or even ten butter pats in a dining room is not obviously "likely to endanger the 
security of the institution." Nor do the reports indicate a disturbance, retaliation by 
other prisoners, or behaviour suggesting they had been incited to do anything. Of 
course, there may be more to the story than appears on the official record. If the 
dining room was understaffed, "acting up" on the part of a prisoner might seem 
threatening, especially if the atmosphere in the prison was unstable at the time. 
Alternatively, the officer may simply have perceived the individual prisoner as a 
troublemaker and used the misconduct charge to have him removed. She may have 
lacked the confidence or the training to use a non-punitive approach. In the absence 
of further information, such speculation will not take us far; the crucial point is 
simply that labelling the behaviour as a breach of the rules involves considerable 
discretion. 

Yet more striking is the exercise of labelling discretion in the second misconduct 
charged against B, when the prisoner alleged that an officer had behaved in a racist 
fashion^ and described him as "the most racist person in here." Clearly, the officer 
was upset and insulted by the allegation; this impact on the officer seems to have 
motivated the decision to treat the allegation as requiring a disciplinary response. In 
choosing this response, the officer appeared to be concerned to deter any similar 
allegation against any member of the prison staff He stated that such accusations 
would not be tolerated even if they were "founded." 

As well as exercising discretion to label conduct as a breach of the rules, staff may 
also make choices about the offence category. Many rules are so broad that they 
overlap. Aggressive gestures directed by one prisoner at another, for example, might 
be viewed as a gross insult or a threatened assault. Conduct that appears to combine 
a defiant attitude and insulting language, as in the misconduct charged against A, 
could be seen as disobedience or insulting. Assuming that the officer in the dining 
room first told B to stop throwing butter, B's alleged misconduct might have been 
reported as "disobeys order," rather than "incites/creates disturbance .... likely to 
endanger security." 

After deciding that a prisoner's behaviour is a specific type of forbidden conduct, 
staff then face the choice of whether to report the incident as a misconduct, or to 
disregard it, perhaps with a warning or caution of serious consequences in case of 
another infraction. As with the discretion to lay criminal charges in the wider 



The prisoner's institutional record does not disclose any prior misconduct of "gross insult." 

As we show in our Interim Report (pp. 13-19), many correctional oHlcers in Ontario's prisons arc known to use racist 
language to and about black and other racialized prisoners. 



308 EXAMINING PRACTICES 

community (see Chapter 6), charging discretion behind bars may be influenced by 
many factors. These include judgments about the seriousness of an incident, beHefs 
about the value of a formal disciplinary response as a response to the specific 
problem, (un)willingness to give the prisoner a break, or a desire to secure the 
prisoner's co-operation on other matters. 

Policy may also shape the exercise of discretion over charges. Ministry guidelines 
state, for example, that informal resolution rather than official processing of a 
misconduct charge may be appropriate when the breach of the rule is not serious. 
Thus the staff members involved in the incidents with prisoners A and B could have 
treated the conduct as a minor breach of the rules and offered the prisoner an 
opportunity to apologize or otherwise make amends.'' That they chose not to meant 
the incident was officially recorded as an alleged misconduct, and the formal 
machinery for adjudicating guilt and deciding punishment was brought into action. 

Once a correctional officer has decided to label and charge a prisoner's behaviour as 
a disciplinary offence, the prisoner may be isolated until further processing of the 
misconduct report. While the regulation clearly states that segregation may be used 
only if the alleged misconduct is "of a serious nature,'"*^ in practice much depends 
on the interpretation of "serious." Both A and B, for example, were placed in 
segregation as soon as the officers decided to treat their alleged conduct as requiring 
discipUne. 

Processing misconduct reports 

Once an officer has decided to invoke formal discipline, she or he must tell the 
prisoner of the misconduct charge and complete a misconduct report. These record 
details of the incident, the section of the regulation that was allegedly violated, and 
any immediate action taken by staff After completing the report, the officer submits 
it to an institutional supervisor, who must notify the prisoner of the allegations. * 

Formal notification usually occurs as part of an "investigative" interview with the 
prisoner, conducted by an institutional supervisor. Apart from notification, such 
interviews are used to advise prisoners of their rights, find out if they need 
interpretation or other assistance, ask for their version of the incident and the names 
of any witnesses they wish to have interviewed, and to assess the prisoners' "current 
attitude to the allegation." When a prisoner is being held in segregation cells, the 
interview also gives the supervisor an opportunity to review the prisoner's status and 
decide whether segregation should continue. ^ As part of the investigation, the 
institutional supervisor interviews the correctional officer who reported the incident 
and any witnesses named by the officer or the prisoner. '^ 



Although Ministry policy is to notify the prisoner orally and in writing, the regulations do not require written 
notification. 

Section 34(2) of the regulation requires that the superintendent review whether the prisoner is to remain segregated 
within 24 hours of such incarceration. 



Racism Behind Bars Revisited 309 



Ministry policy anticipates that just as misconducts vary in seriousness, so should 
the resources and investigative efforts devoted to processing them.'*" When a 
prisoner admits to a relatively minor rule violation that is unlikely to merit a heavy 
penalt>', the fact-finding process may involve no more than a brief interview with 
prisoner and staff member. More serious allegations may require a lengthy 
investigation in which the facts emerge only after interviews and re-interviews of 
many individuals. 

Judged by the investigation, it would appear that the allegations in our examples 
above were not seen as serious. In the case of A, who admitted swearing at the staff 
member but asked for one witness to be interviewed in support of his explanation, 
the entire fact-finding process seems to have been completed within a couple of 
hours of the incident, although A was not released from the segregation cell until 
the next day. 

B was interviewed shortly after the incident in the dining room and denied the first 
charge. B is recorded as having identified one witness - the prisoner at whom he 
was alleged to have thrown the butter - but there is no record of any statement by 
the witness, nor was the witness called at the subsequent hearing. During processing 
of B's second misconduct report (the allegations that he had grossly insulted the 
correctional officer), he admitted making the statements. However, the record gives 
no indication of efforts to assess the validity of the prisoner's accusation. B seemed 
to have accepted that the allegation of racism itself amounted to a gross insult 
whether or not it was true. 

Superintendent's interview 

Once the investigation is completed, the superintendent must, if requested, hold a 
formal hearing (witnessed by at least one other staff member), at which the prisoner 
has an opportunity to challenge the charge. Specifically, the prisoner is entitled to 
dispute the allegation, to question the person making the allegation, and to explain 
the incident. Again, the seriousness of the alleged misconduct influences the nature 
and formality of the hearing. Ministry policy reminds superintendents that although 
in all cases they must "weigh the facts of the case in a fair and impartial manner 
...," "[t]he more serious the alleged misconduct" and the stronger the potential 
disciplinary sanction, the more formalized the hearing and the greater the procedural 
safeguards must be.'' 

Of the three misconducts in our two examples, only one - the incident in the dining 
room involving B - was contested. At his hearing, B's position remained 
unchanged, namely that the officer had made a mistake when she identified him as 
the person who threw the butter. Although the allegation against a prisoner must be 
proven "beyond reasonable doubt," the decision-maker often simply chooses which 



310 EXAMINING PRACTICES 

Story to believe. ' In this case the superintendent chose to believe the officer, 
recording as his reason "the close proximity of the officer [to B]." The problems of 
assessing the relative credibility of prisoners and correctional officers have been 
well documented. ■" 

Punishments 

After accepting the allegation against the prisoner as proved, the superintendent 
must choose an appropriate penalty. For this purpose. Ministry regulations authorize 
the superintendent to classify the offence as "a misconduct" ^ or "a misconduct of a 
serious nature."* 

The Ministry does not provide guidance for determining whether offences are 
inherently serious or not serious. Instead it guides discretion by highlighting factors 
about the prisoner, the incident and its impact on the institution that superintendents 
should consider. Superintendents are advised, for example, to take account of 
"remorse," the prisoner's "performance during the present incarceration" and "the 
inmate's conduct and demeanour at the interview," as well as "previous misconduct 
reports during the present incarceration," the nature and seriousness of the 
misconduct and its impact on "security, safety and good order of the institution." 
While this procedure has the advantage of encouraging superintendents to look at 
the context of a misconduct, it also creates potential for penalties to be, or to appear 
to be, disparate, harsh or inexplicable. 

The penalties imposed in our examples are illustrative. Prisoner A, who swore at the 
staff member, was punished by forfeiting five days of remission, which meant he 
had to spend five more days in prison than if the misconduct had been treated as not 
serious. Prisoner B, whose "gross insult" was the allegation that the officer had used 
racist language and was a racist, was punished by forfeiting ten days of remission. 
For throwing butter pats in the dining room, conduct that staff interpreted as 
creating or inciting a disturbance likely to endanger the security of the institution, B 



It is well established by case law that it is an error to instruct a Jury that it must accept one story or the other beyond 
a reasonable doubt. In law the standard of proof beyond a reasonable doubt must be applied to all the facts, and the trier 
of fact may accept all, part or none of either story. K v. W. (D.) (1991) 63 C.C.C. (3d) 397 at 409 (S.C.C). 

Section 32 of the regulation provides that any misconduct may be punished by any combination of a reprimand, 
withdrawal of privileges, cancellation of a temporary absence permit, removal from a living unit, program or (prison) 
employment, or a change in the security status. 

If the misconduct is judged serious, s. 32(2) of the regulation gives the superintendent greater powers, such as ordering 
a prisoner held in segregation on a restricted diet for up to ten days, or segregated on a regular diet for as much as 30 
days. With prisoners who are serving a sentence (as opposed to remanded before trial or held for immigration purposes), 
superintendents may also impose "forfeiture of remission" (loss of "good time") or, subject to Ministerial approval, 
suspend prisoners' eligibility to earn remission Both of these penalties have the effect of delaying the date of release. 



Racism Behind Bars Revisited 31 1 



was punished by "closed confinement [segregation] for an indefinite period of no 
more than 30 days."* 

Conclusion 

This formal process for investigating and adjudicating allegations of prisoner 
misconduct attempts to accommodate many of the legal requirements of fair 
procedure within the constraints of the provincial prison system. However, the 
discretion available to correctional officers and superintendents has few practical 
constraints. As we have pointed out elsewhere in this Report, the availability of such 
broad discretion provides greater opportunities for racist attitudes to influence 
decision-making, with adverse consequences for racialized communities. Within the 
institutional constraints of prisons, the due process model of adjudication cannot be 
relied upon as protection against systemic racism. As our Interim Report 
recommended, operational responsibility and accountability for eliminating overt and 
systemic racism must be placed squarely in the hands of institutional superintendents 
and permeate every level of operations. 

Misconducts in practice: differential enforcement 

The Commission designed a study to investigate disciplinary practices at five 
prisons that hold significant numbers of black prisoners. ^ We hoped to conduct 
detailed comparisons that would include issues such as the circumstances in which 
misconducts were recorded, the nature of the investigations, and reasons for the 
choices made. However, due to inadequate record-keeping practices much of the 
information we needed was unavailable. Our analysis was therefore limited to 
comparing types of misconduct charges and penalties imposed on black and white 
prisoners.^' 

A further consequence of the poor record-keeping is that our findings should be 
interpreted with caution. Although we note several important trends that emerged 
from the data available to the Commission, the considerable quantity of missing data 
means that it is simply not possible to determine the extent to which racial 
differentials exist. 

Data were gathered for all prisoners charged with one or more misconducts during 
the period of our study,* but the analysis compares only black and white adults 



Section 33(1) of the regulations permits prisoners to ask the Minister to review any misconduct penalty that delays their 
potential release date or whenever they believe that the required procedures were not followed. Our investigation of these 
reviews (including in our two examples) led us to conclude that the Ministry interprets the obligation to review narrowly. 

Maplehurst Correctional Centre, Metro West Detention Centre, Metro Toronto East Detention Centre, Toronto Jail and 
Vanier Centre for Women. Although initially we collected data about all racialized prisonerrs, we were unable to collect 
a sufTicient sample of racialized prisoners other than black. 

All misconducts from Jan 1, to March 31, 1992, for the men's prisons and Metro West, and from Jan. 1 to May 31, 
1992, for Vanier. 



312 EXAMINING PRACTICES 

(males and females) and male youths* The samples of black and white prisoners are 
quite comparable by offender status and misconduct history. Only about 5% of the 
adult women and 1 5% of the adult men had a previous record of breaking 
institutional rules. Youths were much more likely than adults to have had earlier 
misconducts: the records of about half showed at least one prior misconduct. 

Taken as a whole, the data show that black prisoners were over-represented and 
white prisoners under-represented among prisoners charged with misconducts during 
the study period. This pattern was consistent for adults and youths, and occurred at 
every prison in the study. 

This finding is consistent with the perception that black prisoners are more likely to 
be charged with misconducts than white prisoners. The trend clearly suggests an 
adverse impact on black prisoners in the invocation of the misconduct sanction. 
However, critics might suggest that black prisoners are more likely to break the 
rules and that correctional officers are just responding to their behaviour. This view 
is not home out by our more detailed analysis, which reveals distinctive trends in 
the rule infractions reported for black and white prisoners. 

Policing discretion 

• Taken as a whole, black prisoners were most over-represented and white 
prisoners most under-represented in misconduct reports for wilfully disobeying 
an order. By contrast, black prisoners were most under-represented and white 
prisoners most over-represented in misconduct reports for possession of banned 
substances - the misconduct known as "contraband." 

• Black women were most over-represented and white women most under- 
represented in misconduct reports for issuing a "gross insult." By contrast, black 
women were most under-represented and white women most over-represented in 
misconduct reports for contraband. 

• Among youths aged 16 and 17, black males were most over-represented and 
white males most under-represented in misconduct reports for wilfully 
disobeying an order. By contrast, black young males were most under- 
represented and white young males most over-represented in misconduct reports 
for committing or threatening assault. 

• Black adult males were most over-represented and white adult males most 
under-represented in misconduct reports for committing or threatening assault.^ 
By contrast, black adult males were most under-represented and white adult 
males most over-represented in misconduct reports for contraband. 



The male youth sample is aged 16 and 17. 



Of the 11 4 misconducts charges involving "commits or threatens assault," black men were charged at a rate 1.3 times 
higher than their representation in the prison population, while white men were charged at only 0.8 times their 
representation in the prison population. 



Racism Behind Bars Revisited 313 



These trends indicate that blaclc prisoners are more likely to be charged with 
misconduct involving interpretation of behaviour, in which correctional officers 
exercise a greater degree of subjective judgment. However, black prisoners are less 
likely to be charged with misconduct when the discretionary powers of correctional 
officers are limited by the need to show factual proof, such as possession of 
forbidden substances. The reverse is true for white prisoners. "" 

Penalty discretion 

Taken as a whole, black prisoners were most over-represented and white 
prisoners most under-represented in the "closed confinement" or segregation 
categor>' of punishment. 

• Black women prisoners were most over-represented and white women prisoners 
were most under-represented in the segregation category. By contrast, black 
women were most under-represented and white women most over-represented 
among prisoners punished with a reprimand. 

Among 16-and 17-year-old youths, black males were most over-represented and 
white males most under-represented in the segregation category. By contrast, 
black males were most under-represented and white males most over-represented 
in punishments involving "changes in program or living accommodation." 

Black men were over-represented and white men under-represented in 
segregation penalties, but this was not the penalty with the greatest over- 
representation of black and under-representation of white prisoners. The category 
with the greatest disparity favouring white men was changes in program or 
living accommodation. Black men were most under-represented and white men 
most over-represented in punishments involving loss of remission. 

Given these findings, it was clearly important to explore the relationship between 
the type of misconduct and penalt>' to see if over-representation of black prisoners 
in the segregation category of penalty simply reflected the nature of the offence 
charged or the combined effect of policing and punishment choices. This analysis 
shows a striking absence of a correlation between offence type and penalty, 
indicating complete randomness in the assignment of penalties to offences. 

This finding strongly confirms the views of prisoners, OPSEU and individual 
correctional officers about disparities in the exercise of penalty discretion, at least if 
the nature of the offence is supposed to be the most important factor. As noted 
above, however, decision-makers are to take account of several factors when 
selecting penalties. Since they generally do not record the reasons for the penalty, or 
even the factors they took into account, the study was unable to identify any 
explanations for penalty choices. 



314 EXAMINING PRACTICES 

Conclusion 

While these trends do not conclusively document systemic racism, they go much 
further than indicating greater representation of black prisoners amongst those 
subjected to formal discipline. The over-representation of black prisoners in the 
more subjective misconduct charges, and their under-representation when discretion 
is restricted, strongly support the conclusion of differential treatment because of 
race. 

As we have already observed, prison disciplinary processes can have only a limited 
role in diminishing systemic racism in prisons. Nevertheless, efforts should be made 
to standardize disciplinary proceedings and make them more objective. The Anti- 
Racism Co-ordinator of the Ministry of the Solicitor General and Correctional 
Services should play an active role in this process. 

The definition of misconducts should be restricted to behaviour rather than 
subjective assessments of attitude or lack of respect for authority. Restraint should 
be shown in resorting to formal discipline, and informal alternatives should be 
preferred. Superintendents should also exercise restraint and seek greater consistency 
in the penalties they impose. The purposes of the disciplinary system and its 
underlying principles should be clearly articulated. In short, the disciplinary system 
should comply with the rule of law. 

9.1 The Commission recommends that the Ministry of the Solicitor General and 
Correctional Services, in consultation with the Ministry's Anti-Racism Co- 
ordinator - 

(a) review the Ministry of Correctional Services Regulations in order to 
eliminate subjective elements of the definitions of misconduct wherever 
possible. 

(b) review policies for resorting to the disciplinary process and imposing 
penalties in order to achieve greater restraint and consistency. 

Use of force by prison staff 

During our consultations with many hundreds of prisoners, a frequently expressed 
area of concern was the inappropriate use of force by correctional officers in penal 
institutions. Black prisoners, in particular, consider themselves vulnerable to 
physical violence by guards. 

Their views were supported by some former correctional officers. One officer 
explained that these occurrences are a result of a traditional punitive correctional 
philosophy that is still deeply rooted in many staff members. He stated: 

"There are too many people in the Ministn,' who are from the old school, the one we 
called colonialism. In the old days, if an inmate did something wrong, you took him 
down to the end of the range, and you laid a beating on him. It didn't matter if he 
was black or white .... " 



Racism Behind Bars Revisited 315 



Wliile this "old school" correctional philosophy may have played a significant role 
in the use of force, other correctional officers speculate that racism may be a 
catalyst. The following comment by a correctional officer is particularly powerful: 

"Tlie leading union official in my institution, on my ver>' first day, made a point of 
coming to see me to say no CO [correctional officer] is trusted in tliis institution 
unless they have beaten up an inmate. In my time there, many COs sat around 
telling me how much tliey hated niggers, how much tliey enjoyed beating them up." 

Another concern expressed by prisoners, institutional staff and managers, lawyers 
and prison support groups is the difficulty of investigating and verifying excessive 
use of force because of a culture or "conspiracy of silence" in prisons, by which 
guards protect one another and prisoner complaints are given little credence. Indeed, 
from our interviews with correctional officers, it was apparent that line staff in 
particular are under enormous peer pressure to deny allegations regarding improper 
use of force against prisoners, and to support their fellow officers. In one forum 
conducted by the Commission, an experienced black correctional officer stated; 

"Correctional officers are reluctant to intervene when a black inmate is being beaten 
by a white officer. If you did, there would be retaliation - from your white peers, 
from supenisors, from managers. When a black officer speaks out against racist 
incidents, tliere is retaliation. They are targeted." 

The problem of improper use of force by correctional officers is a particularly 
abhorrent blight on the criminal justice system. Prisoners are especially vulnerable 
because correctional officers have almost complete control over them. The closed 
environment of prisons means that correctional officers' conduct is rarely subject to 
outside scrutiny. Institutional and personal accountability is further complicated by 
the short sentences served in provincial institutions, barriers to making complaints, 
and the lack of credibility of prisoners trying to establish misconduct on the part of 
correctional officers. In light of these serious allegations, the Commission attempted 
to determine whether the use of force differs according to race. 

Whenever a prisoner alleges that correctional staff have used excessive or 
unnecessary force, written incident reports must be prepared. We requested that the 
correctional ministries provide us with copies of incident reports (or equivalent 
documents) from 1989 to 1994. Data was obtained from 34 adult correctional 
institutions, 37 Phase 2 young offender facilities, and 12 area and regional offices of 
Ministry of Community and Social Services. Incidents specifically relating to "use 
of force" or assault were analyzed. 

Unfortunately our study was plagued by incomplete and inconsistent information. 
TTie study did not make any significant findings in relation to black and other 
prisoners' relative vulnerability to excessive violence. The detailed study, which 
describes the problems of data-gathering, is available (see Appendix B) and might 
well form a starting point for systematic research in this area. 



316 EXAMINING PRACTICES 

The Office of Anti-Racism Co-ordinator for adult corrections, and the Office of 
Child and Family Service Advocacy should establish mechanisms for monitoring 
excessive use of force in Ontario prisons. They should also document any 
differential use of force against racialized prisoners. Stiategies to prevent and 
respond to such violence should be a priority. 

Discretionary release from prison 

The Ontario correctional system has two discretionary release programs - temporary 
absence and parole - that enable some prisoners to begin to reintegrate themselves 
into the community during their prison sentence. * Participants may attend school, do 
paid or unpaid work, rebuild family relationships and join community-based 
treatment or counselling programs. Both parole and temporary absence involve 
conditional release, which leaves participants subject to correctional authority while 
away from prison. They may be required to return to a correctional institution if 
they are deemed to have breached a condition of release. 

Temporary absence program 

The temporary absence (TA) program authorizes superintendents '^^ (or their 
designates^) to permit adult prisoners to leave an institution while under a sentence 
of incarceration. In some situations, the prisoners are offered little or no freedom, 
such as during an escorted absence to obtain medical or dental treatment. Others 
allow almost fiill participation in community life. For example, a prisoner granted a 
temporary absence permit to reside at a community resource centre may go to work, 
attend school, participate in other community programs and rebuild relationships 
with family. 

In addition to giving prisoners the practical and psychological benefits of spending 
time outside the institution, TAs may favourably affect prisoners' treatment on their 
return to prison and their ultimate release date. Successful participation in a TA 
program may enhance a prisoners' status in the eyes of correctional officers and 
may favourably influence parole boards. 

Black and other racialized prisoners and members of community organizations 
voiced concerns to the Commission about access to TA programs. Some prisoners 
reported difficulties in finding out how to apply for TAs, and many were 
disappointed that the type of permit they wanted was not available at the prison 
where they were held. Others perceived racial differences in approval rates within 
some prisons. Prisoners in some institutions were also concemed about lack of 
accurate information about TA decisions and decision-makers. They reported 



A third program of early release, earned remission, has lost much of its discretionary element Any prisoner not paroled 
is entitled to unconditional release from incarceration after ser\ ing two-thirds of the sentence (unless an institutional 
penalty involving loss of remission delays release). Release as a result of earned remission satisfies the sentence and 
the individual cannot be required to return to prison to serve the remaining time. 

Section 3 of the regulation allows the superintendent to delegate this power to other institutional officials. 



Racism Behind Bars Revisited 317 



significant difficulties in determining who is responsible for recommendations and 
approvals of TA applications, or why an application is rejected. 

We investigated these concerns through reviews of Ministry policy and institutional 
practices, inter\'iews with correctional staff and representatives of community 
resource centre (CRC) residences, observations of permit hearings and an 
exploratory study of the participation of black and white prisoners in the TA 
programs at Maplehurst Correctional Centre (for adult men) and at Vanier Centre for 
Women (adult women). Our key findings are: 

Inadequate provision for translation and interpretation in the prison system may 
impede access to TAs for persons who do not speak English or French. 

Considerable variation among prisons in the availability of TAs, eligibility 
criteria, and application and approval procedures creates disparity within the 
system and may confuse prisoners. 

• At Maplehurst Correctional Centre, which has a reactive and ad hoc application 
process, black men were under-represented among applicants relative to their 
representation in the prison population. Black and white applicants, however, 
were equally successful in obtaining TAs. 

At Vanier Centre for Women, which has a proactive and systematic TA 
application process, black women were represented among TA applicants in 
about the same proportion as in the prison population. Black and white 
applicants were equally successful in obtaining TAs. 

Linguistic barriers 

Access to temporary absence programs depends not only on eligibility, but also on 
knowledge that the opportunity exists and understanding of the process. Ministry 
policy holds superintendents responsible for ensuring that prisoners are advised of 
the types of permits available at each prison, eligibility criteria and the application 
process.* This information is normally given orally or on video during an orientation 
session shortly after a prisoner arrives at the institution. Information about TAs may 
also be posted on prison walls, circulated in leaflets or distributed in handbooks to 
prisoners. 

Unfortunately, this information is available only in English or French. None of the 
prisons reviewed in the Commission's study used professional interpreters to tell 
prisoners from linguistic minority communities about TAs (or indeed about any 
other aspect of prison life and programs). To the extent that prison managers had 
considered their duty to communicate information about TAs to these prisoners, they 
largely relied on other prisoners, staff with relevant linguistic skills (if any), and, 
occasionally, volunteers. 



Superintendents must also provide information about the TA programs on request to the public and to people who may 
wish to make representations on behalf of a prisoner. 



318 EXAMINING PRACTICES 

Several aspects of the application process also indicate lack of attention to the needs 
of prisoners from linguistic minority communities. First, the TA application forms 
are available only in English and French. Second, Ministry policy provides that 
access to an interpreter during the TA application process is entirely at the 
discretion of superintendents, even though the policy accords prisoners a right to 
make oral or written submissions in support of an application. Third, there are no 
formal standing arrangements for institutions to fund or secure interpreters. While 
some staff told the Commission that the prison in which they worked would pay for 
interpreters when necessary, a more typical response was: "We don't have the 
money to pay for interpreters." 

Inconsistent procedures 

The Ministry provides some guidance on basic criteria for assessing temporary 
absence applications* and the procedures to be followed for applications to a 
community resource centre or for a TA of longer than 1 5 days. No further guidance 
on the TA process appears in law, or policy. Institutions are free to set their own 
eligibility standards for applications, devise procedures for assessment and 
recommendations, and determine who should review applications and make 
recommendations to the superintendent. 

In the absence of comprehensive provincial standards for the TA process, 
considerable variation has developed among Ontario prisons. Some have established 
qualifying periods before eligibility for a first application or between applications. 
At some institutions, eligibility depends on participation in specific internal 
programs. Some require a period free from misconducts. The existence and nature of 
such requirements vary from prison to prison. 

Procedures for reviewing TA applications and making recommendations to the 
superintendent also vary. Some institutions channel all applications through a TA 
co-ordinator, who reviews the forms, collects assessments of applicants and makes 
recommendations to the superintendent. Some rely on the standing TA board that is 
required to review community resource centre applications,^ adapting the procedures 
to the type of absence being sought. Other prisons strike ad hoc committees of 
correctional officers on duty at the time applications need to be reviewed. Many 



These are; minimal risk to the community, "suitability" of the prisoner's plans for the time away from the institution, 
the relative benefits to the prisoner of "continued custodial supervision" instead of community programming, and likely 
reactions in the community if the release were to become public. (Ministry of Correctional Services, Adult Institutions 
Policies and Procedures Manual. 1992). When assessing applicants on these criteria, correctional staff are to consider 
current and previous convictions, relevant judicial comments at trial, immigration status, behaviour within the institution 
and "progress" during the time in custody. 

Superintendents are required to establish a "Temporary Absence Committee" and must refer all applications for lengthy 
absences (more than 1 5 days) to this committee for review and a report before deciding. The committee must review 
the application as soon as possible and no later th»n 1 5 days after receipt. Prisoners have a right to meet the committee 
to make their case orally and may, at the discretion of tlie superintendent, be assisted by an interpreter or any other 
person whom the superintendent believes would help the committee. 



Racism Behind Bars Revisited 319 

prisons do not interview applicants for TAs of less than 15 days, but some interview 
ever>'one who applies, whatever the purpose or period of the absence sought. 

While prison staff and management may welcome the absence of a standard ministry 
procedure because it permits flexibility in the use of staffing resources, it may pose 
problems for prisoners, especially if they are moved between prisons. Differences in 
procedures among institutions are confusing, and may cause the process to be 
perceived as arbitrary. 

Inconsistency may also be found within prisons, especially those where on-duty 
officers (rather than a designated staff member or standing committee) collect 
information, report and make recommendations to the superintendent about TA 
applications. Since participation in the approval process changes from work shift to 
shift, prisoners in these institutions may have little idea of who is responsible for 
processing their applications and making recommendations. Even though applicants 
receive a copy of the application form with a signature in the recommendations 
section, they experience the process as anonymous and unaccountable.' 

Senior managers of institutions that use this system say it offers line staff an 
opportunity to participate in programming and enhances the capacity of correctional 
officers to control prisoners. Prisoners are said to be more likely to co-operate in 
institutional routines if they know that any one of many staff members may evaluate 
a TA application. This view elevates expedience and institutional control over 
fairness, which requires that prisoners know the identity of those who judge them. 

9.2 The Commission recommends that the Ministry of the Solicitor General and 
Correctional Semces, advised and assisted by the Ministry's Anti-Racism Co- 
ordinator, review policies and procedures respecting the temporaiy absence 
system in order to establish ministi7-wide core standards that include removal 
of communication barriers. 

Case management and access 

Variations in temporary absence programs partly reflect differences in approaches 
within the Ontario correctional system. Prisons that emphasize this important form 
of community reintegration typically invest more in preparing and selecting 
prisoners. They may proactively encourage applications, and advise and assist 
prisoners to take advantage of these opportunities. Other institutions are reactive, 
undertaking the least possible adjustment to institutional priorities of control and 
responding only to prisoner initiatives or their own needs. (If overcrowding reaches 
crisis proportions, for example, TAs may be a desirable way of easing the pressure.) 



One correctional officer told the Commission quite openly. "They don't know who I am because they can't read my 
signature " 



320 EXAMINING PRACTICES 

Our exploratory study of access to TAs at two southern Ontario prisons - Vanier 
Centre for Women and Mapiehurst Correctional Centre - illustrate different 
approaches. Vanier Centre for Women is the only Ontario prison exclusively for 
sentenced adult women. It has a wide range of temporary absence options and a 
highly structured program. Most women who wish to participate must first apply for 
a "recurring escorted TA," which permits them to leave the prison under staff 
supervision for weekly outings. Prisoners who build credibility by good behaviour 
during these outings may "graduate" to less restrictive and longer absences. 

Prisoners learn about the TA program during their orientation to the prison in the 
first few days after they arrive. A staff member assigned as her "case manager" also 
reminds each prisoner of the program and advises her about applications to it. There 
are no specific arrangements for information and assistance in languages other than 
English and French. Few prisoners at Vanier are from linguistic minority 
communities. 

TA applicants at Vanier are not interviewed, but their forms go through an elaborate 
process of review and assessment. Staff management, the supervisor of the unit 
housing the applicant, a social worker and the prisoner's case worker are all asked 
to comment on the application, evaluate the prisoner, and make a recommendation. 
Assessments typically consist of detailed written descriptions of the prisoner and her 
progress at Vanier. Applications and all evaluations are submitted to the Temporary 
Absence Board, a standing committee that reviews the material and makes 
recommendations to the superintendent. The Board consists of two permanent 
members (the senior assistant superintendent and the "discharge planner") and a 
third staff person, typically a shift supervisor of correctional officers. 

Mapiehurst Correctional Centre is a medium-security prison for sentenced adult 
males. Its TA program generally has many fewer options and much less structure 
than Vanier' s. Eligibility is determined mostly by qualification periods. 

Prisoners learn about TAs through staff contact, an orientation video and 
information posted in the prison. There is no specific provision for information to be 
provided in languages other than English and French. Prisoners from linguistic 
minority communities may receive informal assistance from other prisoners, staff 
and volunteers. 

Mapiehurst relies on correctional officers on shift to staff an ad hoc panel that 
reviews applications and makes recommendations. Applicants are not interviewed. 
Once the panel has reviewed an application, its report and recommendations are 
submitted to the senior assistant superintendent for decision. 

In addition to reviewing the TA programs at each institution, we conducted a small 
statistical study of TA applications by black and white prisoners. Data were 
collected on all TA applications made during two months of 1993 for which a file 



Racism Behind Bars Revisited 321 

was available* The data were first analyzed for indications of barriers to access to 
the TA program. We then compared outcomes for black and white prisoners at each 
stage of the application process to see if they were equally successful. 

At Vanier, these analyses indicated that black women were represented among 
applicants in the same proportion as in the prison population as a whole, and they 
were as successful as white women at being recommended and approved for TAs. 
Thus the study provides no indication of systemic barriers to TAs for black 
prisoners at Vanier at that time, and no evidence of direct or indirect racial bias in 
decision-making. It suggests that black women are as knowledgeable as white 
women about the existence of TAs and just as eager as white women to use 
opportunities for community reintegration. 

At Maplehurst, black prisoners were substantially under-represented and white 
prisoners substantially over-represented among TA applicants. About 40% of all 
prisoners but only 24% of TA applicants were black. By contrast, 57% of prisoners 
and 76% of the TA applicants were white. Once an application was made, however, 
black and white prisoners were equally successful. Thus the study shows no 
evidence of direct or indirect racial bias in the decision-making stages of the TA 
process at Maplehurst. But the under-representation of black prisoners in the 
application process suggests that systemic barriers may impede their access to TA 
program. 

From our numerous discussions with black women prisoners at Vanier, it appears 
that some credit for their active participation in the TA program is due to the staff 
member responsible for setting up the Black Cultural Awareness Program in this 
pnson, and the superintendent who fully supported this important initiative when it 
came under attack. As we noted in our Interim Report, "Black prisoners show 
enormous pride in this program, saying that it provides education, builds self-esteem 
and is a source of emotional support. "^^ Members of the group share information 
about opportunities for change inside and outside the prison, and learn from one 
another how best to use what is available. 

Another significant difference between the TA processes at Maplehurst and Vanier 
IS the use of a case management model in the women's prison. This involves active 
encouragement of prisoners, regular assessment of their suitability for various 
programs and assisting them to apply for appropriate programs. Case management 
means prisoners are likely better informed about their opportunities, and they also 
receive help in planning applications. The reactive model at Maplehurst, by contrast, 
places all the onus on the prisoner. A prisoner who does not understand the system,' 



At the time of this study (1993) 34% of women at Vanier and 40% of men at Maplehurst were black; both prisons had 
expenenced massive growth in the number and proportion of black prisoners m the previous six years. See Chapter 4. 
All applications filed during the two months were reviewed at both institutions if a file was available (Maplehurst - 287; 
Vanier - 107). We chose this period because complete records of TA applications were kept only a few months. Many 
prisoners in both in.stitutions filed more than one application. Not every application on record could be linked to a file 
because some applicants and their files had been Ixansferred to other prisons. 



322 EXAMINING PRACTICES 

does not know where to go for assistance, or is illiterate in English or French is at a 
great disadvantage, while prisoners familiar with the system are implicitly favoured. 
This reactive method of allocating opportunities to begin community reintegration 
should be replaced by a proactive case-management system. 

9.3 The Commission recommends that the Ministi'y of the Solicitor General and 
Correctional Services, in consuhation with the Ministry's Anti-Racism Co- 
ordinator, establish a case management system in all prisons to ensure that 
every prisoner is advised and counselled about available prison sei'vices and 
programs. 

As the Commission was finalizing its work, we learned from a Government press 
release that the Ministry will no longer fund community resource centres (which the 
media call "halfway houses"). Instead, the Ministry intends to expand other types of 
institutionally based TA programs, supplemented by electronic monitoring. 

While it would be beyond our mandate to assess the appropriateness of such a shift, 
there is little doubt that staged transition from close custody to full release is 
necessary and desirable for some provincial prisoners to promote rehabilitation. 
Further, our study of access to community resource centres demonstrates that black 
and other racialized prisoners can face considerable access barriers to TA programs. 
It would be most unfortunate if these changes deny access to a stable address, 
assistance and counselling to find employment or to establish links with family and 
supportive community members and groups to black and other racialized prisoners. 

Parole 

Parole is a more systematic program than temporary absence. The eligibility criteria 
are national standards,* decisions to grant or revoke parole are made by a provincial 
board, and persons released into the community are supervised by staff of the 
Ministry of the Solicitor General and Correctional Services. However, the parole 
application process is administered by institutional staff, which leaves considerable 
potential for disparity among and within Ontario prisons. 

Failure to offer racialized prisoners appropriate assistance with parole applications 
was a key theme of our consultations with advocacy groups and prisoners. They 
reported that many prisoners, especially from linguistic minority communities, lack 
knowledge about the parole system and do not know where to tum for advice. As a 
result they are highly vulnerable to correctional officers providing false or 
misleading information, persuading them not to apply or threatening to withhold 
support for the application. 



Section 120(l)(a) of the Corrections and Conditional Release Act (S.C. 1992, c. 20) provides that eligibility for full 
parole arises when one-third of the sentence is completed. In highly exceptional circumstances, such as terminal illness, 
significantly deteriorating mental or physical health or release for extradition, s. 1 2 1 provides that "parole by exception" 
may be granted at any stage. 



Racism Behind Bars Revisited 323 

A second key theme is differential treatment in decisions to grant or revoke parole. 
Prisoners from racial ized communities were said to be scrutinized more intensively 
- and questioned less respectfully - than white prisoners. They were also said to be 
more likely than white applicants to be viewed as in need of further incarceration or, 
if paroled, to be subjected to harsh and unnecessary conditions. 

The Commission was unable to compare outcomes systematically for white and 
racialized parole applicants because the Ontario Board of Parole does not keep 
statistics that would permit such monitoring. Thus we focused our research on 
barriers that prisoners from racialized communities may face in applying for parole 
and the potential for discrimination in decisions. Much of our understanding of the 
potential for differential treatment in the parole system is drawn from a lengthy 
submission prepared in 1993 by a committee of members of the Board's central 
region. Members of the Board showed considerable interest in our work and 
repeatedly expressed a desire to identify and eliminate practices that may reflect 
systemic racism. 

Preparation for parole 

Commission visits to prisons, our interviews with prisoners, correctional staff, 
prisoner advocates and parole board members, and our observations of parole 
hearings indicate that in many institutions preparation for parole is reactive and 
inconsistent. Information about parole is available to prisoners in a pamphlet and on 
video, but little is done to ensure that they receive and understand it. Once again, 
the information needs of prisoners from linguistic minority communities are 
generally overiooked. Neither pamphlet nor video is available in languages other 
than French and English, and we found no evidence of formal arrangements to 
secure interpreters when necessary. 

A frequently expressed concern was that prisoners have difficulty finding a 
knowledgeable person to explain Parole Board procedures, answer questions and 
assist m developing a release plan acceptable to the Board. Ontario prisons provide 
staff - Institutional Liaison Officers (ILOs) - to co-ordinate the parole process and 
ensure that the Board receives accurate information in a timely manner. ILOs 
interview prisoners seeking parole to determine what aspects of a release plan need 
investigation and verification by a parole officer in the community. These interviews 
could enable prisoners to ask questions and seek clarification of the parole process. 
In practice, however, prisoners receive little guidance because ILOs are generally 
overwhelmed by paper work and often unsure of their rolt. Many whom we 
interviewed felt they were not responsible for helping prisoners create a realistic 
release plan. Without such a plan, prisoners have virtually no chance of obtaining 
parole. 

Parole preparation may be as reactive for non-racial ized prisoners as for racialized 
ones. However, findings from the TA study associating reactive process with under- 
representation of black prisoners among applicants for discretionary release suggests 
that such a process may have a harsher impact on racialized prisoners. While further 



324 EXAMINING PRACTICES 

Study of this possibility may be of interest, change should not be delayed. The 
merits of a case management approach to guide prisoners in preparing for parole are 
indisputable. Well-prepared prisoners are likely to reintegrate into the community 
more successfully. Poorly prepared applications simply waste time and resources on 
hearings with no chance of success. 

9.4 The Commission recommends that the Ministry of the Solicitor General and 
Correctional Services and the Ontario Board of Parole, in consultation with the 
Ministry's Anti-Racism Co-ordinator> assign a formal role to Institutional 
Liaison Officers in a case management system such as in Recommendation 9.3. 
In particular, these officers should assist prisoners in preparing parole 
applications, and work to remove communication barriers. 

Parole hearings 

At a parole hearing, prisoners are interviewed by a panel of three members of the 
Ontario Board of Parole. Prisoners may be "assisted" at the hearing by a lawyer* or 
another person of their choice. Board members usually base their inquiries on a 
"parole consideration form," which includes suggested questions in the following 
areas: Has the prisoner derived the maximum benefit from imprisonment? Will the 
release of the prisoner on parole constitute an undue risk to society? Will reform 
and rehabilitation be aided by granting parole?^ 

Board members are expected to read the entire file on the applicant before a parole 
hearing. However, because of time and cost, a transcript of the sentencing judge's 
findings and reasons for sentence, let alone a trial transcript, is rarely available. Nor 
is any documentation prepared by crown or defence counsel at trial. Instead, the 
police summary of the offence and the offender prepared for the original bail 
hearing is frequently relied upon. In Chapter 5 we show that, in the absence of rules 
for the contents of such documents, they often contain gratuitous and occasionally 
explicitly racist comments. Even if they are free of such taint, these "show cause" 
reports inevitably put the police case against the prisoner at its strongest. They do 
not record what was proven against the accused or admitted by him or her as part of 
a guilty plea. 

The Board usually also considers a separate police recommendation on the parole 
application. On occasion this may contain exaggerated views and stereotyped 
perceptions of the prisoner. 



According to Board data, only about four percent of prisoners are represented by a legally trained person (lawyer or 
articling student). 

These questions were the criteria in the Parole Act for granting parole before the passage of the Corrections and 
Conditional Release Act in 1992. Section 102 of the latter Act provides that parole may be granted if "(a) the offender 
will not, by reotfending, present an undue risk to society ... and (b) the release of the offender will contribute to the 
protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen." 



Racism Behind Bars Revisited 325 



In its submission to the Commission, the central region of the Board noted the 
dangers of members stereotyping parole applicants who do not seem remorseful: 

"Tlie Board tends to look favourably on those who show some signs of remorse" .... 
It is not unconmion for the Board to inter\'iew inmates who blame everyone and 
eventliing else for their situation without taking any responsibility for tlieir 
behaviour or for finding solutions. Howe\'er, there are also a number of people 
appciiring before the Board who we believe have a legitimate claim to being tlie 
victims of a system tliat treats lliem unfairly and contributes to a do« nwiud spiral 
witli little hope of recover)'. They refuse to take responsibility because they were in 
fact not responsible. If tlie members of the Board do not take a stand at this point, 
then we will be contributing to the perpetuation of racism." (emphasis in original) 

The central region submission further noted that pre-parole reports by probation and 
parole officers sometimes (unintentionally) stereotype applicants. The submission 
described suspect references to residence in a "high crime neighbourhood," to 
fathering children from different concurrent relationships, or to "aliases" of people 
known by several different names among families and friends. In Chapter 8 we 
make recommendations about the need for probation officers to avoid irrelevant 
references to race on pre-sentence reports and to question references by sources 
whom they consult when preparing such reports. Similar care should also be taken 
by parole officers, ILOs and Parole Board members. 

Several lawyers experienced in appearing before parole boards pointed out that the 
absence of mechanisms to disclose materials in the Board's possession in advance 
can particularly disadvantage racial minority applicants. Typically, the prisoner is 
informed only at the outset of the hearing which sources of information the panel 
has reviewed. It is highly unlikely that the prisoner has seen them prior to the 
hearing or has an opportunity to examine them during the hearing. * Disclosure in 
advance of the hearing would give applicants an opportimity to challenge or explain 
reports containing inaccurate or incomplete information or impressions based on 
stereotypes. 

Our observation of parole hearings revealed evidence of stereotyping of racialized 
persons, particularly in relation to women and drugs. For example, a black female 
prisoner who denied having a drug problem was repeatedly asked what programs 
she had entered to address her drug problem. In addition, stereotypes were raised 
about the residences of prisoners from racialized communities. The following 
examples of comments about black and Aboriginal prisoners by Board members' 
were generally unchallenged by their colleagues: 

'He is going to be living near where the drug dealing takes place ... As a result. I 
am not in favour of parole." 



Federal case law dealing with non-disclosure of confidential information has ruled that in virtually all cases, disclosure 
of at least "the gist" of the information must he provided to the applicant if the Board intends to rely on it: Gough v. 
Canada (Notional Parole Board) (1990) 3 C.R. (4th) .325 (F.C.T.D.), afTd. 3 C R. (4th) 346 (F.C.A.). 



326 EXAMINING PRACTICES 

"How would parole to Jane and Finch [in Metro Toronto] help you with your drug 
problem?" 

"Parkdale [in Toronto] may not be the best place for her because of the drug scene." 

This discussion indicates three avenues for improving the parole process for 
prisoners generally and particularly for racialized applicants. At the first level, 
greater outreach in prisons would make parole accessible to all prisoners. Second, 
applicants deserve better and more timely disclosure of information to prepare 
properly for hearings. Finally, while the brief we received from the Ontario Board of 
Parole expresses a genuine resolve to address problems of systemic racism, the 
recent comments referred to above indicate persistent racial stereotypes that the 
Board must confront. 

Public accountability 

Unlike the courts, where openness and public visibility are fundamental, prisons are 
physically designed and operated to exclude members of the public. As a result, 
opportunities to observe whether "the rule of law [runs] behind prison walls''"^ are 
limited. Therefore, mechanisms to expose official conduct and practices to public 
accountability are vitally important. Recommendations in our Interim Report to 
establish an Anti-Racism Co-ordinator were designed in part to serve this purpose. 
In addition to reviewing that role, we recommend here two fiarther avenues for 
public accountability: community advisory committees and specialized legal 
services. 

Anti-Racism Co-ordinator 

In response to our Interim Report, the Solicitor General has established the office of 
Anti-Racism Co-ordinator. We understand that steady progress is being made but is 
constrained by funding. Our analysis in this chapter reinforces the desirability and 
indeed the necessity of this institution. This office must be properly funded and 
receive the full support of the Minister in order to fulfill its functions proactively 
and creatively. 

The Co-ordinator' s office and of the Office of Child and Family Service Advocacy 
could increase the public accountability of Ontario's prisons in several ways: 

• by ensuring and overseeing the development and implementation of strategies for 
ongoing community involvement in corrections, 

• by conducting systematic reviews of ministry-wide programs and policies; 

by conducting periodic and random audits of prison conditions, programs, 
practices and services; 

• by investigating complaints of racism from staff or prisoners; 

• by receiving periodic reports on anti-racism initiatives and records of racist 
incidents from superintendents; and 



Racism Behind Bars Revisited 327 



• by publishing reports on activities, progress and requirements on a periodic basis 
and in Ministry annual reports. 

The first function - ongoing community involvement in corrections - is of primary 
importance. Since the Interim Report was released, we have had broader 
consultations, which have led to our recommendation to create community advisory 
committees. 

Community advisory committees 

Our consultations with correctional staff, spiritual advisers, community groups, 
former members of Ministry community advisory groups, members of federal 
Citizen Advisory Committees (for penitentiaries) and the Anti-Racism Co-ordinator 
indicate that a critical element of any strategy to reduce racial discrimination in 
prisons lies in extensive public scrutiny of their operations. While security concems 
must be respected, they should not be used to prevent representatives of the public 
from observing prison operations first-hand and from communicating directly with 
prisoners. A public presence not only helps humanize a bleak environment, but also 
provides prisoners with a link to the wider community and reminds staff of their 
obligations to that community. 

The federal penitentiary system has developed Citizen Advisory Committees, which 
are authorized by regulations. '^ Committee members are given reasonable access to 
all parts of the institutions and to all staff and pnsoners, and are permitted to 
observe disciplinary and release hearings if the prisoners involved consent. 

Some of these committees have interacted extensively with prisoners and staff 
Members may escort prisoners on temporary absence permits, negotiate with 
superintendents and staff over prisoner grievances, and arrange for prisoners to 
participate in community education. 

A similar community presence should be established in provincial institutions. The 
Solicitor General, in consultation with the Anti-Racism Co-ordinator and local 
community organizations, should establish a community advisory committee for 
every provincial correctional institution. These committees could vary from three to 
seven members depending on the size of the institution, and members should be 
drawn from the area of the institution. 

Each committee should include people with a variety of skills and backgrounds and 
should reflect the diversity of the local community, A criminal record should not 
prevent membership on these committees. Members should be compensated for 
travel and other reasonable expenses related to their work and be representative of 
the prison population. 

Committee members should be given inspection powers under the Public Institutions 
Inspection Act, which would make it an offence to obstruct their work. They should 
have access to all parts of the institution, including disciplinary and release hearings 



328 EXAMINING PRACTICES 

with the consent of the prisoner involved. Their functions should include 
communication with prisoners and staff to assist in informally resolving grievances 
or otherwise to assist prisoners. They should be specifically authorized to advise 
institutional heads, and a complete written response to their advice should be 
required. Finally, their fimctions should include a role in encouraging commimity 
education about prisons and the correctional system. 

In addition, the Solicitor General should establish an Ontario Council of Advisory 
Committees consisting of representatives of community advisory committees. Its 
membership might include three members from each region of Ontario, who would 
be elected at an annual meeting of all community advisory committees. The Council 
should have a permanent secretariat. Members should receive an honorarium for 
attending Council meetings, as well as reimbursement for reasonable expenses. 

The Council of Advisory Committees would communicate information amongst 
local advisory committees and organize annual meetings to disseminate information 
and exchange ideas. Its role would include assisting the Anti-Racism Co-ordinator in 
monitoring province-wide problems and making recommendations to the Minister. 

9.5 The Commission recommends that - 

a) the Solicitor General, in consultation with the Office of the Anti-Racism Co- 
ordinator and local community organizations, establish a community advisory 
committee for every provincial correctional institution. 

b) committee members reflect a variety of skills and backgrounds, and the 
diversity of the local community. A criminal record should not prevent 
membership. 

c) committee members be given inspection powers under the Public Institutions 
Inspection Act and have access to ail parts of the institution, including 
disciplinary and release hearings if the prisoners involved consent. 

d) committee functions include informal resolution of complaints and other 
assistance to prisoners, and encouraging community education about the 
correctional system. 

e) committees be specifically authorized to advise institutional heads and to 
require a full, written response to any such advice. 

9.6 The Commission recommends that - 

a) the Solicitor General establish an Ontario Council of Advisory Committees 
consisting of representatives of the community advisory committees from all 
regions of the province. 

b) the Council establish liaison and communicate information amongst local 
advisory committees, organize annual meetings to disseminate information and 
exchange ideas, and work with the Anti-Racism Co-ordinator in monitoring 
province-wide problems and making recommendations to the minister. 



Racism Behind Bars Revisited 329 

Correctional legal clinic 

In addition to communit>- accountabilit\', prison practices should be subjected to 
scrutiny against the legal standards established for them. However, low public 
visibility of decisions and imprecise standards in the provincial prison environment, 
create special difficulties for this type of accountability. In addition to addressing 
these problems, a special model is needed to provide effective legal advice and 
representation to prisoners. 

The Correctional Law Project of Queen's University provides legal advice, 
assistance and representation to prisoners in the 1 1 federal penitentiaries in the 
Kingston area. The Project occasionally receives inquiries from prisoners serving 
sentences in Ontario prisons. While its staff respond to simple inquiries from 
provincial prisoners, the Project has no mandate to serve them. 

The Project's principal services are assisting prisoners with appeals against 
conviction and sentence by preparing factums for the Court of Appeal, representing 
prisoners at hearings before the National Parole Board and penitentiary disciplinary 
courts, and advising in other areas of correctional law (such as outstanding criminal 
charges or other court proceedings, immigration issues and international transfers of 
prisoners)."^' 

Such advice and advocacy on behalf of prisoners in provincial institutions is 
obviously needed. These services require legal expertise, hands-on knowledge of 
prison practices and dynamics, and a proactive approach. The clinic model for 
providing legal services to prisoners has several attractive features. It allows 
development of expertise in this area, which seldom occurs in private practice. It 
permits development of eligibility criteria for legal aid that accommodate the 
specific needs of prisoners. Continuity of practice and the accumulation of 
institutional knowledge would permit further identification of systemic issues and 
adoption of coherent strategies for responding to them. 

We propose establishment of a provincial correctional law project on a pilot basis. 
Although its services should be available to any prisoner in the institutions served, 
the project should be located in the Toronto area, where it could assist many black 
and other racialized prisoners. The clinic should have a small staff complement of 
full-time lawyers, well-trained paralegals and a board of directors comprised of 
community representatives, ex-prisoners and prisoner support groups. Staff and the 
directors should reflect the diversity of Ontario. 

9.7 The Commission recommends that the Ontario Legal Aid Plan establish a 
pilot correctional legal clinic in the Toronto area staffed by full-time, salaried 
lawyers and paralegals. 



330 EXAMINING PRACTICES 

Endnotes 

'■ Commission field notes of interview vvitli black prisoner interviewed at Metro West Detention 
Centre, March 26, 1993 (manuscript on file). 

^' See Canada. House of Commons, Report to Parliament by the Sub-Committee on the 
Penitentiary: System in Canada, chair Mark MacGuigan ("MacGuigan Report") (Ottawa: 1977), 
paras. 414-18 and principles 11 and 12. 

^ Collin V. Lussier [1983] 1 F.C 218 (TD); appeal allowed in part, Dec. 12, 1984, unreported, No. 
A-294-84 (FCA). 

'* Canadian Charter of Rights and Freedoms, s. 12. 

^- Ibid, s. 15(1). 

*• Human Rights Code, R.S.O. 1990 c. H-19, s. 2(1). 

^- R. V. Bea\'er Creek Correctional Camp (Institutional Head), ex p. MacCaud [1969] 1 C.C.C. 371 
at 378-9 (Ont. C.A.). The pre-Charter law is reviewed in Michael Jackson, Prisoners of 
Isolation: Solitary Confinement in Canada (Toronto; University of Toronto Press, 1983); Re 
Desroches and the Queen (1985) 6 C.C.C. (3d) 406 (Ont. Div. Ct.). 

**■ Reproduced in Ontario Ministn.' of Correctional Services, "Adult Institutions Policy and 
Procedures: Policy Statement on Race Relations," subject no. ADl 02 12 01, April 1992. 

' Ontario Ministry' of Correctional Services, "Adult Institutions Policy and Procedures: Conditions 
of Confinement." subject no. ADl 05 01 01, April 1992. 

'°' Gresham Sj'kes. The Society of Captives: A Study of a Maximum Security Prison (Princeton, 
N.J.: Princeton University Press, 1958); David Rothman, The Discovery of the Asylum (Boston: 
Little. Brown & Co.. 1971); Michel Foucauh. Discipline and Punishment (New York: Pantheon, 
1978); D. Melossi and M. Pararino, The Prison and the Factory: The Origins of the Penitentiary 
System (Totowa, N.J.: Barnes & Noble Books. 1981); Jackson Prisoners of Isolation (note 7). 

"■ For example, according to the Ontario Minisdy of the Solicitor General and Correctional 
Senices (note 9): it is the policy of the ministr\' to treat inmates in a responsible, just and 
humane manner which ... promotes their personal reformation, dexelopment and socialization" 
and "the custodial aspect of the ministry's mandate comprises tvvo primar\' components, the 
protection of society by supervising the detention and release of inmates and the provision of 
an environment and opportunities to promote their rehabilitation and successful reintegration into 
the communit>'." 



12. 



Rupert Cross, Punishment, Prison and the Public: An Assessment of Penal Reform in Twentieth 
Century England by an Armchair Penologist (London: Stevens and Sons, 1971). See also 
Solicitor General of Canada, "A Summary' and Analysis of Some Major Inquiries on Corrections 
- 1938 to 1977," cited in Canadian Sentencing Commission, Sentencing Reform: A Canadian 
Approach - The Report of the Canadian Sentencing Commission (Ottawa: Supply and Services, 
1987), p. 44. 



Racism Behind Bars Revisited 331 



'^ R.R.O. 1990, Reg. 778, s 29. 



Ontario Miiiistn' of Correctional Services, "Adult Institutions Policy and Procedures: Inmates 
- Discipline and Misconduct," subject no. ADl 05 08 01, July 1992, p. 1. 

Ministry of Coirectional Services, "Inmates - Discipline and Misconduct" (note 14) pp. 3-4. If 
the misconduct involves conflict with someone other than the intervening officer, tlie aggrieved 
party must also consent to infomial resolution. 



15. 



16. 



18 



19. 



20. 



21. 



24. 



25. 



26. 



27. 



Regulation 778, s. 34(1 )(c). 



'^ Ontario Ministr}- of Correctional Senices, "Inmates - Discipline and Misconduct" (note 14), pp. 
5-6. 



Ibid., p. 3. 

Ibid., p. 8. 

Timothy Bynum and Raymond Paternoster, "Discrimination Revisited: An Exploration of 
Frontstage and Backstage Criminal Justice Division Making," Sociology and Social Research, 
69 no. 1 (October 1984): 90-108; Julius Debro, "Institutional Racism Within the Structure of 
American Prisons," in Robert Woodson, ed.. Black Perspectives on Crime and the Criminal 
Justice System: A Symposium Sponsored by the National Urban League (Boston: G.K. Hall 
1977), pp. 143-60; Eric Poole and Robert Regali, "Race, Institutional Rule Breaking, and 
Disciplinary Response - A Study of Discretionary' Decision Making in Prison," Law Society 
Review 14, no. 4 (June 1980): 931-946; John Ramirez, "Race and the Apprehension of limiate 
Misconduct," Journal of Criminal Justice 11, no. 5 (1983): 413-427. 

Diaime L. Martin, The Discipline Study, October 1993 (manuscript on file). 

See generally: Leo Carroll, Hacks, Blacks and Cons: Race Relations in a Maximum Security 
Prison (Prospect Heights, 111.: Waveland, 1988); Poole and Regali, "Race, Institutional Rule 
Breaking, and Disciplinary Response" (note 20); William Wilbanks, The Myth of a Racist 
Criminal Justice System (Monterey, Calif.: Brooks/Cole, 1987). 

Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 27 and Regulation 778, ss. 
35-39 set out the basic statutory framework for temporary absences. 

Province of Ontario, Commission on Systemic Racism in the Ontario Criminal Justice System, 
Racism Behind Bars: The Treatment of Black and Racial Minority Prisoners in Ontario Prisons 
(interim report) (Toronto: Queen's Printer, 1994), p. 75. 

Martineau v. Matsqui Institution Disciplinary Board (1980) 50 C.C.C. (2d) 353 (S.C.C.) at 373 
per Dickson J. 

Corrections and Conditional Release Act Regulations, SOR/92-620, s. 7. 

Ontario Legal Aid Plan, project description (manuscript on file). 



PART III 



Moving Forward 



Chapter 10 Community Policing 

Chapter 11 Systemic Responses to Police 

Shooting 

Chapter 12 An Equality Strategy for Justice 

Chapter 13 Looking Forward 



Chapter 10 
Community Policing 



Comfortable! That 's what we have been these past feM> decades. 
Comfortable with our role as police officers, with our roles as police 
managers and in our relationship to our surroundings .... 

Because few questions were asked about what we did and even fewer 
demands for change made, we assumed that we were in step. Well, times 
change. 

- Leadership in Turbulent Times' 

The Commission's mandate directs us to inquire into, report and make 
recommendations on community policing policies and their implementation. The 
federal Government has described community policing as "the most appropriate 
response ... to the [policing] challenges and problems of the next decade."' The 
Government of Ontario has declared that it is "shaping the future" of the province's 
residents.^ The Ontario Provincial Police and municipal police forces have embraced 
community policing as an organizational philosophy and a strategic operational goal. 
For example, in 1991 the strategic plan of the Metropolitan Toronto Police presented 
community policing as an organizational philosophy that would take the force 
beyond the year 2000. In 1994, implementation of community policing was listed as 
the number one goal." 

This evolving vision of policing envisages a dynamic relationship between the 
police and the community, ^ which differs significantly from the hierarchical 
structure of what Chris Murphy calls traditional "hi-tech" policing. ^ A recent report 
of the Ottawa Police describes the relationship in this way: 

The philosophy of community policing is by design a difficult concept to quantify or 
generalize. Through it, community problems can be confronted by utilizing strategies 
which the constable and public deem most suitable. In order to be Uoily effective, 
this philosophy dictates that any police response must be tailored specifically to 
address the needs of a particular community.' 



335 



336 MOVING FORWARD 

Commiinity policing involves partnership between the police and the community. 
This requires empowerment of community members and community police officers, 
openness of police services and accountability of the pohce to the community. 

A community policing approach emphasizes peacekeeping, problem-solving, crime 
prevention, reducing barriers between the police and the community, constructive 
alternatives to law enforcement for dealing with some offences or offenders, and 
inclusion of citizens in these and other policing activities. * Stated goals generally 
include efficiency, effectiveness and economy in policing, as well as increased 
public satisfaction with police services.*^ Community policing strategies vary 
considerably because they depend on the perceived needs of the community, police 
resources and organizational structure, imagination, leadership and willingness to 
innovate. Most involve assigning specific officers to neighbourhoods for lengthy 
periods, promoting positive contacts between officers and local residents, and 
developing mechanisms that enhance accountability for services.' 

Community policing aims to transform relationships between the police and the 
community; but, as the Ontario Association of Chiefs of Police told the 
Commission, it "is not, and never has been a panacea" for all that is, or is perceived 
to be, wrong with traditional policing.'" Many of the challenges facing traditional 
pohcing are also found in a community policing system. Among the most important 
challenges is to respond effectively to public concerns about systemic racism in 
policing services. 

This problem has attracted considerable attention over the last two decades. 
Government task forces and police-sponsored inquiries have documented a need for 
change and called for swift action.'' Slowly at first, but more vigorously since the 
late 1980s, police authorities across Ontario have incorporated many of the proposed 
reforms into their practices. Despite the best efforts of reformers, community 
members and pohce officers, however, well-founded concerns about systemic racism 
continue to taint the policing system. 

Implementation of community policing provides opportunities to ensure that 
systemic racism is no longer an issue for Ontario police services. To take advantage 
of these opportunities, unequivocal commitments to racial equality must be 
demonstrated in the delivery of police services and pubHc confidence built. Recent 
reforms to police recruitment, training and other employment practices suggest that 
this work is under way.'^ Commitments to change are also evident from programs 



Community policing, as it is being discussed across North America, by no means dismisses law enforcement as an 
important police function. Rather, it views other methods of problem-solving as more appropriate in the vast 
majority of cases, and sees these other methods as contributing to more effective law enforcement when the need 
arises. Police officers are expected to promote communication among those in the community who have conflicting 
interests and views. Skills gained and relationships developed by police officers through peacekeeping in the 
community help them deal with more serious problems that require criminal justice processing. 

336 



Community Policing 337 



undertaken by local police services, such as the creation of units dedicated to 
investigating hate crimes, and from initiatives of the Canadian Association of Chiefs 
of Police, such as the development guidelines for community policing in diverse 
neighbourhoods. 

Our preliminary consultations showed, however, that concerns about systemic racism 
in police practices remain widespread and are deeply felt. These consultations 
produced numerous allegations of rude or disrespectful police treatment and of 
excessive police scrutiny of black and other racialized Ontarians, and revealed 
strongly held beliefs that police authorities tolerate such abusive behaviour. We also 
found considerable suspicion of community policing, especially among black and 
other racialized youths. Many feel excluded from the co-operative partnerships with 
the police that community policing envisages; they fear that racial equality is not on 
the community policing agenda.'^ 

These preliminary findings led us to focus on strategies for building confidence in 
community policing among black and other racialized communities. To develop 
these strategies, we investigated perceptions of racial inequality in policing, practices 
that contribute to such perceptions, and existing responses to community concerns 
about systemic racism. 

Our research into perceptions is based on the Commission's survey of black, white 
and Chinese residents of Metro Toronto (see Chapter 2). The findings show that the 
majority of residents surveyed believe the police treat black people worse than white 
people; a substantial minority believe the police discriminate against Chinese people. 
Perceptions that police discrimination is widespread are obviously likely to erode 
further public confidence in the police. To address this problem, we propose that 
systematic strategies to promote constructive relationships between the police and 
the community should be built into the planning, implementation and governance of 
community policing systems. 

After presenting our findings on public perceptions and recommendations on 
community policing, we turn to specific practices that have eroded confidence in the 
police amongst members of black and other racialized communities. First we look at 
a police practice that has probably done more than any other to exacerbate tensions 
and fuel mistrust - exercise of the discretion to stop people in cars and on foot. 
Findings from the Commission's public survey about the number and the nature of 
stops lend considerable weight to community concerns that this discretion is 
exercised in a racially discriminatory manner. Our recommendations for solving this 
problem include guidelines for officers and reforms to the complaints system. 

Police authorities obviously have the most influence over practices that police 
officers initiate. More complex problems arise when the police are implicated in 
actual or perceived discrimination by other people or institutions. This may occur 
when a person who requests police services acts, perhaps implicitly, on racialized 



338 MOVING FORWARD 



assumptions. For example, a shopkeeper who holds racialized stereotypes about 
criminality might call the police and urge that charges be laid against a young black 
person who steals a baseball cap, but view a similar theft by a white youth as an 
annoying prank that does not merit police involvement.* Similarly, neighbourhood 
residents may believe that black male youths playing soccer in a local park are 
intimidating, likely to be drug dealers and deserving of police attention; but the 
same residents may view white male youths who use the park for recreational sports 
as harmless. 

Many complaints about policing that we received involved situations such as these, 
in which the police risked being drawn into discriminatory patterns of enforcing the 
law or responding to calls for police services. Even if these requests, by other 
citizens or institutions, were the catalysts for (apparently) discriminatory police 
action or scrutiny, members of black and other racialized communities tend to hold 
police authorities responsible for police actions. 

We focus on an issue that was raised repeatedly during public consultations and 
interviews: alleged discrimination when school authorities resort to the police in 
response to harmful behaviour by students. Some schools were said to be quick to 
treat such behaviour by black students as criminal conduct and request police 
intervention, while handling similar behaviour by white or other racialized students 
internally. Many youths and parents complained about the perceived double standard 
and what they saw as police "collusion" in differential treatment of black students. 
We were left in no doubt that the relationship between schools and the police has 
contributed to distrust of the police. 

Our research into this problem involved interviews with police officers and school 
authorities, and surveys of staff and students at 1 1 Ontario secondary schools. While 
the survey findings are complex, they clearly demonstrate a need for police services 
to guard against erosion of confidence in community policing that may result from 
excessive policing of black students in schools. 

The chapter closes by looking at how privately employed police - security officers - 
in shopping malls and other publicly used spaces may create problems for 
community policing. Black and other racialized youths frequently report excessive 
scrutiny, aggression, racial epithets and contempt by security officers who seem to 
perceive their behaviour as "un-Canadian." Many of these youths do not fully 
understand the differences between security officers and publicly employed police; 
even those who do understand tend to experience the activities of both as part of a 
single policing enterprise. Consequently, perceived racism in the conduct of security 
officers, especially if it leads to intervention by the public police, may damage 
perceptions of the public police. 



In many areas of Ontario, the police do not generally lay charges for minor thefts, but may advise the complainant 
to do so. 



Community Policing 339 



Perceptions of inequality in policing 

A longstanding barrier to successful policing in many black and other racialized 
communities is the extent to which community members perceive their treatment by 
police as racially discriminatory. One impediment to dismantling this barrier is the 
frequency with which such perceptions have been dismissed as insignificant, wrong 
or held by only a small, vocal and unrepresentative minority of the community. 
Though inquiry after inquiry has concluded that such beliefs are widespread, the 
findings have sometimes been discredited because of their reliance on "self-selected" 
participants in public consultation exercises. 

To avoid fruitless debates about the extent of the views we report, the Commission 
supplemented our consultations with a survey of residents of Ontario's largest and 
most diverse city. More than 1,200 randomly selected adults from Metropolitan 
Toronto's black, white and Chinese communities participated in this survey, which 
dealt with a range of criminal justice services and processes.' Here we report their 
perceptions about whether the police treat people equally. 

Findings 

We asked respondents if they think the Metro Toronto Police treat - 
young people the same as older people 
black people the same as white people 
poor people the same as wealthy people 

• women the same as men 

• English-speaking people the same as people who do not speak English 
Chinese people the same as white people 

Chinese people the same as black people 

As Figure 10-1 shows, most white, black and Chinese Toronto residents think the 
police do not treat everyone the same. For all except two comparisons, at least half 
of those sampled perceive differential treatment.^ 



t 



The sample and study methodology are outlined in Chapter 2 and detailed further in our Technical Volume. See 
Appendix B. 

In general, people who think there is differential treatment believe the Metro Toronto police treat poor people worse 
than wealthy people, young people worse than older people, men worse than women, people who do not speak 
English worse than people who do speak English, black people worse than white people, Chinese people worse than 
white people and black people worse than Chinese people. 



340 MOVING FORWARD 



Figure 10-1: Belief th 

Chinese v. White 

Black V. Chinese 

Non-English v. English - 

Men V. Women 

Poor V. Wealthy 

Black V. White 

Young v. Old 

c 


lat the Metro Toronto Police treat certain groups differently 


■i 




las 




^H 




■- 






52 
52 




^^^H^HHjj^^^^^H 55 


^^^H^^^^^^^^^^fH 58 


I^HH^^^^^^^^^^^H 65 


) 10 


20 30 40 50 60 70 80 

Percent of respondents 



We analyzed perceptions of racial bias in police treatment in more detail. Asked to 
compare Metropolitan Toronto Police treatment of white people and black people, 
74% of black, 54% of Chinese and 47% of white respondents replied that the police 
do not treat black people the same as white people. Among those who perceive 
differential treatment of black and white people, 93% of black, 91% of Chinese and 
87% of white respondents think the Metro Toronto police treat black people worse 
than white people. Respondents who perceive differential police treatment of white 
and black people tend to think it happens routinely. The data show that 84% of 
black, 73% of Chinese and 72% of white respondents think differential treatment 
occurs "about half the time" or more. 

Asked to compare Metropolitan Toronto Police treatment of white and Chinese 
people, 48% of black, 42% of Chinese and 24% of white respondents replied that 
the police do not treat Chinese people the same as white people. Among these who 
perceive differential treatment of white and Chinese people, 82% of black, 79% of 
Chinese and 79% of white respondents think the police treat Chinese people worse 
than white people. Again, respondents who perceive differential police treatment 
tend to think it occurs frequently. The data show that 71% of black, 52% of Chinese 
and 56% of white respondents think this differential treatment happens "about half 
the time" or more. 



Asked about treatment of black and Chinese people, 51% of black, 38% of Chinese 
and 30% of white respondents think the police do not treat black people the same as 
Chinese people. Among these who perceive differential treatment of black and 
Chinese people, 90% of black, 74% of Chinese and 87% of white respondents think 



Community Policing 341 



the police treat black people worse than Chinese people. Once again, respondents 
who perceive differential treatment believe it happens regularly. The data show that 
81% of black, 56% of Chinese and 74% of white respondents think the police treat 
black people differently from Chinese people "about half the time"' or more. 

It is clear from these findings that black, Chinese and white residents of Metro 
Toronto perceive racial bias in police practices, and that they perceive a hierarchy of 
racial bias. Though respondents think there is discrimination against Chinese people, 
they do not believe it is as common or as severe as discrimination against black 
people. 

In sum. these findings confirm the view of the Task Force on Race Relations and 
Policing that "visible minority communities do not believe that they are policed in 
the same manner as the mainstream, white community."''' But our findings make 
two further points: 

• not all racialized communities are perceived as equally vulnerable to unfair 
policing, and 

• many white people share the perceptions of racial inequality in policing. 

Widespread perceptions of police discrimination are a potentially significant obstacle 
to successful community policing. Solutions to this problem require the police to 
fully integrate commitments to racial equality into all aspects of policing practices, 
and to co-operate in developing new approaches to police governance. 

Integrating racial equality into policing services 

Ontario's large urban police forces, particularly the Metropolitan Toronto Police, 
unquestionably realize that they must integrate racial equality into their services. In 
the last few years they have made important changes in institutional policies and 
procedures, reformed and professionalized hiring and employment practices, and 
attempted to reach out to the black and other racialized communities. Nevertheless, 
our findings show that more needs to be done. As was succinctly put in a recent 
Metro Toronto Police report on race relations in policing. Moving Forward 
Together, "ic is not a time for complacency .... the time is ripe for a new 
departure."'^ 

The new departure proposed in that report suggests that much has been learned from 
the failures as well as the successes of previous initiatives. Moving Forward 
Together sets out a comprehensive strategy to improve race relations and seeks to 
integrate the strategy into core policing. Moreover, it is a considered response to 
problems documented by other reports into policing, rather than a reaction to a 
specific conflict between the police and members of racialized communities. As 
such it presents a calm and realistic analysis of necessary changes and a coherent 
plan for achieving them. This approach contrasts with more limited and reactive 
police responses in the past, generally provoked by particular events. 



342 MOVING FORWARD 

The report was well received by the Metropolitan Toronto Police Services Board. In 
August 1 994, the Board implemented a Moving Forward Together recommendation 
by approving this mission statement: 

The Metropolitan Toronto Police is committed to providing an equitable service, by 
eliminating barriers to access and treating all persons within the community and the 
organization with respect and equality, with no expression or display of prejudice, 
bigotry, discrimination or harassment toward any person. 

At the same meeting the Board also adopted the following "Achievable 
Implementation Objectives": 

• "[sjenior management is committed to and accountable for the integration of 
race relations into core policing activities. 

• "[wjithin all of Metro Toronto's diverse neighbourhoods and communities, 
each member [police officer] performs his/her duties with sensitivity and 
effectiveness, consistent with community oriented policing. 

• "[i]n a manner that is consistent with Board policy, the organization 
establishes structures and process to provide members with the necessary 
skills, resources, supports and rewards to ensure that members interact 
appropriately with all persons; the institution effectively supports community 
oriented policing. 

• "[njeighbourhoods and their communities are continually consulted and 
actively involved in supporting and enhancing members' ability to work 
effectively within diversity." 

Planning for racial equality in policing services is not, of course, the same as 
achieving it. But with Moving Forward Together, the Metro Toronto Police have 
taken an important step towards making "race relations a non-issue" in policing.'^ 
The report suggests there is more interest in achieving this goal than evident in the 
past. By defining expectations and setting objectives for the integration of racial 
equality into all aspects of police services, the Metro Toronto Police have created a 
concrete basis for public accountability. 

Greater steps should be taken to publicize this important report. Wider circulation of 
its recommended plan of action would show the public what has been achieved and 
would demonstrate commitment to change. It would also enable the public to 
provide useful feedback on the extent to which community policing services are 
fulfilling the expectations that have now been defined. 

The process that resulted in Moving Forward Together is a useful model that police 
services across Ontario could adapt to their communities. The general purpose of 
such reviews would be to raise expectations of racial equality in policing and to 
improve police service accountability regarding racial equality. More specific goals 
would be to develop practical proposals to integrate racial equality into every aspect 



Community Policing 343 



of policing services, including implementation objectives, time frames and publicity 
measures. 

10.1 The Commission recommends that - 

a) each Ontario police service that has not yet done so conduct a 
comprehensive review of its commitment to racial equality in policing that 
involves members of police services, community groups and interested 
individuals. 

b) police services widely publicize their action plans regarding equality in the 
most common languages spoken in their service areas. 

c) progress on implementing such action plans be reported to the local police 
services board quarterly and be publicized widely. 

Accounting to the community 

A persistent complaint raised during the Commission's consultations is that 
traditional structures of police governance are insufficiently accountable and 
accessible to the community. Ontario's main institutions for civilian governance, 
police services boards, were said to be too weak to regulate effectively, too distant 
from the concerns of ordinary people, and too close to police leadership to provide 
necessar>' oversight. Complainants repeatedly referred to incidences of police 
services boards apparently failing to control abusive or provocative police actions. 

One oft-cited example is the failure of the Metropolitan Toronto Police Services 
Board to take vigorous action when it was revealed in 1993 that the Metro Toronto 
Police had conducted secret surveillance of prominent black community 
organizations and leaders. The police "Intelligence Report" of April 25, 1989, which 
was shared with other police forces, contained information about these individuals 
such as dates of birth, social insurance numbers, addresses, organizational 
affiliations and automobile licence plates. All persons named were of African 
heritage and shared an interest in community-police relations. The Metro Police 
were publicly criticised,'^ and specific requests were made to the Police Services 
Board'* for a justification from the Chief for this systematic invasion of privacy. 

Failure such as this are seen as evidence that the Metro Toronto Police are not 
accountable to the Police Services Board, and that police services boards are 
insufficiently accountable to the community. Some blame these problems on 
ambiguities in how the Police Services Act defines the role of police services 
boards. While the Act holds the boards responsible for policy, it assigns exclusive 
control over "specific operational decisions" and "day-to-day operations" to the 
chiefs of police." The rationale for this division of responsibility is that - "[d]ay-to- 
day professional policing decisions ... must not be interfered with by any political or 
administrative person or body."^° 



344 MOVING FORWARD 



The distinction appears straightforward, but in practice it may be hard to determine 
which decisions involve poHcy and which are operational. Susan Eng, then Chair of 
the Metro Toronto Police Services Board, commented that - 

The crux of the issue ... is how to distinguish an "operational" matter falling outside 
of board jurisdiction from general management policy matters that fall within board 
jurisdiction. It is this determination that lies at the heart of the relationship between 
the board and the force. For example, the board's rejection of a planned computer 
project in the context of preparing the budget ... could be seen as a specific 
operational decision outside of the board's jurisdiction. However, given that the 
board has the ultimate responsibility for the budget or to execute agreements as a 
distinct entity, this cannot be the type of decision intended to be restricted. Rather 
the intention is to avoid direct board interference in the actual policing function and 
not in the decisions governing the structure and milieu in which those policing 
functions occur.^' 

Routine policing activities are often of the greatest concern to the public. 

One response to community concerns would be to bring operational aspects of 
policing under the control of the police services board. If this were done, the board's 
governance mandate would likely be more comprehensive and complete. However, 
board control over operational activities would create a risk of illegitimate political 
interference with day-to-day policing. It also raises the question of how an all- 
powerful board could be fully accountable to the community. 

Proponents of the existing system of divided responsibility maintain that the board's 
authority over policy, objectives and priorities provides adequate civilian 
govemance.^^ Even the most enthusiastic advocates of divided responsibility 
recognize, however, that a working partnership between the police chief and the 
police services board requires that board members have effective tools for policy- 
making and governance. According to this view, measures to strengthen the 
governance capacity of police services boards should emphasize training of board 
members to exercise their responsibilities and providing support for their efforts to 
supervise chiefs of police. 

As this summary suggests, discussions of the powers of police services boards and 
police chiefs have tended to focus on the traditional policing system. In this system, 
a police services board is a "top-down" accountability mechanism in a centralized 
structure of police authority and service delivery. But community policing entails 
co-operative partnerships between local police officers and the neighbourhoods 
where they work. Community policing systems thus require a broader and more 
inclusive accountability mechanism that enables members of different local 
communities to participate in "the decision-making process which affects priorities, 
allocations, and the implementation of police services"" in their neighbourhoods. 
Such a mechanism would also assist police services boards in carrying out their 
more formal governance function. 



Community Policing 345 



Local community accountability in policing poses new challenges for both the police 
and the community. As an Ottawa Police report says, the police will "need to 
replace the authority that they previously derived from the criminal justice system 
with an even more powerful form of authority" - a relationship with the public.'" 
The community, in turn, is expected to "accept its responsibility to actively 
participate in problem-solving."" This responsibility is ongoing and requires a 
sustained commitment to work with other community members, as well as the 
police, "to achieve security and protection" within local areas. "^ 

These challenges should not be underestimated. As one police advocate of 
community policing notes, police officers will have to change how they define their 
work: 

Traditionally, police have decided, unilaterally, what is important. As a consequence, 
because we have a monopoly over our work and because policing has a very 
nebulous job description ... and mostly because we are human, to a large degree we 
have ended up doing the things we like to do, and that are quantifiable (an hour 
spent on radar is measurable, not so with a bunch of snotty-nosed kids bent on 
mischieO, as opposed to what is best for the community. Over time, a space has 
developed between what we think is important and what the public thinks is 
important." 

The shift from unilateral police decision-making described by this officer to 
community-based governance requires a significantly different approach from the 
informal "consultations" of traditional policing. These initiatives were frequently ad 
hoc responses to stressful, high-profile incidents, or to lobbying from one segment 
of a diverse community. In many instances, the objectives of the consultation 
exercise have been poorly defined, as has been the role of police representatives. 
Community members often had conflicting expectations of these events and were 
disappointed by the process and the results. 

If community-based accountability is to succeed where the old consultation exercises 
failed to make racial inequality "a non-issue" in policing, the limitations of past 
practices must be overcome. As a member of an Ontario police service board told 
the Commission, "attending a few community meetings does not mean community- 
based policing." 

Informal consultation exercises have failed to produce working partnerships, partly 
because community representatives lack the information they need to participate 
effectively in decisions about problems, priorities and policies. Though individuals 
and groups may know the concerns of local neighbourhoods, they are largely 
dependent on the police for systematic information about crimes, policing processes 
and policy options. This dependence makes it difficult for communities to debate or 
even question police justifications for their practices. Consequently, consultation is 
sometimes perceived as a means of rationalizing what the police do rather than as a 
partnership that jointly defines problems and develops solutions. 



346 MOVING FORWARD 

Another limitation of traditional consultation methods is their failure to address the 
complexity and diversity of the community involved. Even within the smallest 
policing areas, the community is rarely homogeneous. What some people view as a 
problem is a harmless social activity to others. Though community-based 
accountability demands that the police define their work in concert with the 
community, officers cannot act only on behalf of people who insist that the presence 
or activities of others is a problem. This was graphically illustrated in the tragic 
shooting of Vincent Gardner by a Nepean police officer in 1991. 

The shooting occurred when the police raided a house where black people socialized 
and listened to a local reggae band. Neighbours had complained to the police about 
the noise, vehicles and the number of visitors to the house, and made allegations 
about drug trafficking. The police took the neighbours' complaints seriously and 
placed the house under surveillance. They also held a "community meeting" to 
discuss the concerns, but the people living at the house were not invited. Instead, the 
problem was defined in the absence of the people believed to be causing it. As a 
result, it was wrongly and stereotypically characterized as drug trafficking. This 
characterization of the problem led to a "solution" that ended in tragedy. ^^ 

Fortunately, shootings do not usually result when some people define the presence 
or activities of others as a problem. But conflicts among community members within 
a local area are common. For example, youths who "hang out" on street comers, 
sometimes in large numbers and often talking loudly, are frequently perceived as 
intimidating or a nuisance by merchants, older street users and residents. This type 
of conflict may occur in any urban centre, but in racially diverse communities it can 
be exacerbated. 

A typical response under traditional policing is for the police to accept that the 
presence of the youths is a problem and to break up the groups or move them 
elsewhere. Predictably, youths may feel aggrieved by this treatment and resent the 
police role. Alternatively, traditional police officers who define their role exclusively 
in terms of law enforcement may decide that the concerns of other street users are 
trivial, and so ignore such complaints. In this case, other street users may continue 
to feel intimidated or irritated by the youths and may also lose confidence in the 
police. 

Neither of these traditional policing responses is satisfactory because they do not 
address the heart of the conflict among people who use the streets in different ways. 
Moreover, neither response significantly involves the community or manifests police 
accountability to the community. By contrast, the following example, provided by a 
member of an Ontario police services board, illustrates how police officers working 
in a racially diverse location may facilitate community participation in problem- 
solving: 

"In [one] urban area there is a variety of racial minorities. Through their 
Neighbourhood Watch program, the people from a lot of different cultural and racial 
backgrounds got together with the police on safety issues (break-ins). When race 



Community Policing 347 



issues came up, the police led them through these discussions. [The officers] did not 
regard this as separate from the other facilitation work they were doing and they 
didn't treat it as engaging in 'race relations' work. This example illustrates three 
things. First, the police were taking a preventive approach to safety issues. Second, 
they were doing anti-racist work [as part of their job]. And, finally, this was 
neighbourhood-based policing." 

The Commission's research unearthed several other examples in which a variety of 
community members helped to define problems and develop solutions, and police 
officers facilitated and assisted in solving problems. In contrast, some purported 
partnerships between police and the community are incapable of fulfilling such 
functions because police dominate the relationship and community members lack the 
resources to participate effectively. 

Clearly it is not enough merely to call for greater community involvement in 
problem-solving. Resources must be made available and new participatory structures 
created to match the needs of local communities. While community policing requires 
flexibility at the local level, the Commission also suggests a general framework for 
community involvement throughout the province. 

This framework has two key elements to strengthen accountability and promote 
confidence in community policing among black and other racialized communities. 
We propose, first, the creation of local community policing committees (CPCs) 
organized around divisional levels of a police service or such smaller geographic 
areas or community groupings as may be appropriate. The second proposal, which 
draws on a model used in London, England, is to establish "community safety 
surveys" to provide the community with systematic information on local safety 
concerns and problems.^' 

Community policing committees would work directly with the local police division. 
Their responsibilities would include developing, in concert with the police, broad 
objectives, standards and specific policies for local policing, and monitoring 
successes and failures in achieving these objectives. The committees should also 
facilitate communication between the police and the local community - bringing 
community concerns to division staff and distributing information about community 
policing within the division. Other functions would include working with the police, 
members of the legal community and judges to educate people about safety issues 
and the criminal justice system. We also envisage that members of community 
policing committees might, if requested, assist in informally resolving complaints 
about the police. 

Community policing committees should be constituted as sub-committees of police 
services boards, and function as liaisons between the boards and their local 
community. This would enable issues identified at the local level to influence board 
policies. Local boards should be responsible for monitoring the work of CPCs. 



348 MOVING FORWARD 

Members of community policing committees should be drawn from local community 
organizations, and appointed by police services boards after a full, open and publicly 
advertised search. Orientation programs for members should be provided and jointly 
administered by the boards and local divisions. Committees should be large enough 
to represent a diversity of groups within the service area, and every effort should be 
made to ensure that committees are gender-balanced and include members of local 
racialized communities and young persons. A criminal record should not bar 
appointment. 

Community policing committees should have adequate resources to function 
independently of the police. Staffing needs may vary, depending on the size of the 
community served by the committee, but each CPC should have at minimum a co- 
ordinator to attend to administrative needs. 

CPC meetings should generally be open to the public. If a majority of all members 
vote to meet in private, the committee should make known publicly what the general 
subject matter of the meeting was and the reason for meeting in camera. To avoid 
giving the impression that CPCs are part of the police, meetings should generally 
not be held in police stations. 

10.2 The Commission recommends that police services boards estabhsh local 
community policing committees (CPCs) around either divisional levels of each 
police service or another geographical area or community grouping appropriate 
to the jurisdiction. 

a) CPCs should have seven members, serving three-year terms. 

b) CPC members should be drawn from community organizations active in the 
jurisdiction of the division and appointed by police services boards after a full, 
open and publicly advertised search. 

c) Ever\' effort should be made to ensure that CPCs are gender-balanced and 
include young persons and members of local racialized communities. A criminal 
record should not bar appointment. 

d) Each CPC should have a designated co-ordinator to attend to administrative 
needs. 

e) Members of CPCs should be paid reasonable expenses and offered 
honoraria. 

f) CPCs should meet monthly and be open to the public. Meetings should 
generally not occur in police stations. 

g) The local police services board should be responsible for monitoring the 
work of CPCs. 

10.3 The Commission recommends that each community policing committee 
have the following responsibilities - 

a) to develop, in concert with the local police division and interested community 
organizations and individuals, agreements with the police that establish policing 
objectives and standards of police performance that reflect local community 
needs; and to monitor implementation of such objectives and standards. 



Community Policing 349 



b) to develop, in concert with the local police division, specific policing policies 
and practices as needed. In this role, CPC members should be responsible for 
forwarding community concerns to division staff, formulating responses and 
communicating policies and procedures back to the local community. 

c) to act as a liaison between the police services boards and the local 
community. In this role, the CPC should be responsible for informing the 
community about police services board policies and informing the board about 
issues in that community. 

d) to assist in informally resolving complaints, if requested by both the 
divisional superintendent and the complainants. 

e) to work together with police, members of the legal community and the 
judiciary to promote legal and other forms of community education concerning 
security and the operation of the criminal justice system. 

In order to work effectively, community policing committees and agencies that 
govern the poHce need reliable information about community safety concerns, 
informal consultations by CPC members should be supplemented by information 
gathered more systematically. A community survey regarding safety should be held 
in each police jurisdiction at least once every five years. 

These surveys should gather information on peacekeeping problems, reported and 
unreported crime, including racially motivated crimes, experiences with the police 
and evaluations of local police services. Data should be gathered independent of the 
police, but all results should be made available to the police service and the CPC. 
An ad hoc group representing community organizations, in consultation with experts 
from reputable polling organizations (preferably in the public sector), should 
determine the sampling and survey techniques in order to ensure that the views of 
youths and adults from racialized groups are fully represented. 

10.4 The Commission recommends that - 

a) the Ministry of the Solicitor General and Correctional Services, in 
association with police services boards, fund community surveys regarding 
safety in each local community. 

b) the surveys occur at least once every five years in each local community. 

c) summaries of survey findings be widely distributed. 

Racial inequality in police stops 

The police have long exercised discretion to stop and question people using roads, 
and other public places. These "police stops" are often experienced as an 
unwelcome intrusion by state officials. Repeated stops heighten the sense of 
intrusion, so that even a polite request may feel like harassment. Discourteous 
requests, aggression or violence by police officers make some police stops highly 
traumatic events fraught with fear and a sense of degradation. 



350 MOVING FORWARD 

The legal basis for the general police discretion to stop and question people is 
controversial,''" but the Canadian Charter of Rights and Freedoms and human rights 
codes unquestionably forbid racial discrimination in the way the discretion is 
exercised. Unfortunately, there is seldom an effective remedy when this power is 
abused. 

Studies from many jurisdictions show that police stopping of and aggression toward 
black and other racialized people and young working-class males of all origins 
serves purposes other than crime prevention and detection of offenders.^' It allows 
the police to demonstrate to themselves, to people they stop, and to local residents 
and business people that the police control public spaces. Richard Ericson's study of 
police patrols in an Ontario jurisdiction shows that such demonstrations of authority 
are clearly evident (and deeply entrenched) in police practices. As he says. 

Constant proactive stops are a not-so-subtle way of reminding marginal people of 
the "order of things." Here symbolic authority is paramount: for this reason, 
demeanour becomes an important variable. The person deemed "respectable- 
respectful" will nearly always avoid the full range of [police] actions while his 
opposite must endure personal and property searches, detention for [computerized 
immigration status] checks, and the possibility of minor charges as an "ordering 
device" ... In the jurisdiction we studied, the target is lower-class young persons 
("punkers") who may be occasionally involved in drug and property-related offences 
and who appear to some to be offensive. Regardless of the community, some group 
will always be targeted." 

Ericson's study identified clear patterns of targeting young "lower-class" persons, 
mostly male, whose race is not specified. The Commission's findings show that 
police stops for the purpose of control are racialized. 

The Commission received numerous complaints from across the province about 
excessive and demeaning police contacts with black and other racialized Ontarians. 
Many of these complaints are disturbingly similar to the ones made to the Task 
Force on Race Relations and Policing. They also illustrate the dynamics that Ericson 
identifies. Among, the incidents reported to us were: 

• A civilian police employee describes a "ride-along" with uniformed officers - 

"This white police officer was giving me a lot of information. We stopped four cars, 
and three out of the four cars had black guys in them. Every time that he saw a 
black guy with a nice car, he said, 'That looks like trouble.' They weren't speeding, 
they weren't breaking any noise barrier with their radios; he still said this. I asked 
him why he says that, and he goes, 'Just the way they're dressed, and the way 
they're driving their cars.' I [ask if they're speeding], and he said no .... 

One time we were on our way to a call, and there was a nice car that had four black 
guys in it. They were staring over at us. We couldn't have stopped them [because 
we were going to a call], but the officer called on the radio for another car." 



Community Policing 351 



A researcher records a black university student's experience when he tried to be 
a good citizen - 

"A black university student waiting for a bus decided to do a good deed, and moved 
three turned-over traffic cones left in the road which were causing traffic to swerve. 
As he put them on the sidewalk, a police car pulled up and two white male officers 
jumped out and asked him why he was moving the 'fucking' cones. He explained 
calmly, but was told in an aggressive manner to return them to the road. He refused, 
saying he didn't want to be responsible if someone was hurt. One officer kept 
swearing at him, calling him a 'fucking smart ass" and started advancing towards 
him. At this time an elderly white woman came up and told the police she had seen 
him moving the cones and thought it was a good thing because there could have 
been an accident. The officers told her quite politely that they would handle the 
situation, and she shouldn't be so quick to defend 'these people' because they were 
proven troublemakers. The officers then asked the student for [identification]. He 
refused, saying he had done nothing wrong. There were six other people at the bus 
stop (five of them white) and they all tried to explain to the officers that the student 
had done the right thing. When they heard this, the police officers stopped being so 
loud and threatening, but they were still angry. They went away, leaving the cones 
on the sidewalk, but none of them apologized for their insulting behaviour." 

A Chinese man describes stops in Metro Toronto - 

"I've had three run-ins with the police in the last two years, all of which occurred 
when I was driving alone. I drive a 1991 BMW 385. One officer told me he pulled 
me over because I looked too young to be driving. 1 showed him my driver's licence 
and he was shocked to learn that I was 23 years old. Two more times almost exactly 
the same thing happened. All the officers were white, between 25 and 35. I can 
understand being stopped once, even twice, but three times in two years makes me 
believe those cops were racist. The stops happened twice in the Scarborough area, 
and once in Chinatown." 

A lawyer describes her black client's experiences over 18 months in a complaint 
to the Metro Toronto Police Chief - 

"My client is a young man, without a criminal record, who owns and operates his 
own business ... He tells me that since June of last year he has been pulled over 1 1 
times by the police. This has happened in the Jane/Finch area, in Scarborough, out 
by the airport and in the downtown core. My client tells me that the police will see 
him drive by, they will then follow the car for a while, and eventually he is asked to 
pull over and produce identification. [He] has not been charged with any driving 
offences or criminal offences as a result of these incidents. The police officers who 
have pulled him over have been polite to him, and have indicated to him that 'they 
are only doing their job.' Nevertheless, my client does have a right not to be 
continually harassed in this fashion, and believes (I suspect, quite rightly) that the 
reason he is always being stopped is because he is a young black man driving a 
very nice car." 



352 MOVING FORWARD 

These examples, from many incidents related to the Commission, illustrate various 
ways in which police-initiated contacts with black or other racialized people may be 
intrusive, harassing or intimidating. 

To obtain a more systematic understanding of the problem, our survey of 
Metropolitan Toronto residents asked respondents about their experiences of being 
stopped by police in the past two years. In addition to the number of stops, we 
wanted to know if the respondent was in a car or on foot when each incident 
occurred, and whether the stop was perceived to be fair. 

Frequency of reported stops 

The basic findings for the entire sample show that - 

• More black Metro Toronto residents (28%) than white (18%) or Chinese 
residents (15%) report being stopped by the police in the past two years. 

• More black residents (17%) than white (8%)) or Chinese (5%i) residents report 
being stopped more than once in the past two years. 

Table 10-1: Metro Toronto respondents stopped by the police 
in the past two years, by race 





Black 


Chinese 


White 


Never stopped 


71.9% 


85.4% 


81.8% 


Stopped once 


11.3% 


9.9% 


10.2% 


Stopped two or more times 


16.8% 


4.7% 


8.0% 


Number of respondents 


417 


405 


435 



• Many more respondents report being stopped while in a vehicle (18%) than on 
foot (4%). More black respondents (25%.) report being stopped while in a 
vehicle than white (17%) or Chinese respondents (13%.); but there is no 
statistically significant difference in reported stops while on foot. 

• Many more black respondents (39%) than white (9%) or Chinese (14%) 
respondents think officers who stopped them did not treat them fairly. 

Analysis of reported stops by sex indicates that, across the sample as a whole, many 
more men (29%) than women (13%) report being stopped by the police in the past 
two years. When broken down by sex and race, the data suggest that black men are 
particularly vulnerable to being stopped by the police. About 43%. of black male 
respondents, but only 25%. of white male and 19%. of Chinese male respondents, 
report being stopped by the police in the past two years. Also, significantly more 
black (29%) than white (12%) or Chinese (7%.) men report being stopped by the 
police two or more times in the past two years. Consistent with the men's sample. 



Community Policing 353 



Figure 10-2: Belief by respondents that they were treated unfairly by the 
Metro Toronto police the last time they were stopped, by race 



White 



Chinese 



Black 




10 



20 30 

Percent of respondents 



40 50 



Figure 10-3: Percent of respondents stopped by the police in the past two years, 

by race and gender 



Chinese 


^^^^H 11 


25 






,19 




White 


^^^^■l3 










Black 


^^^^^^Hl7 








43 



■Women 
□Men 



10 20 30 40 50 

Percent of respondents 



more black women (17%) report being stopped by the police than white (13%) or 
Chinese (11%) women, but the differences among women are not statistically 
significant. 



354 MOVING FORWARD 



Figure 10-4: Percent of respondents stopped two or more times by the police 
in the past two years, by race and gender 



Chinese 



White 



Blacl< 



Il_ 



12 



■Women 

aMen 




29 



10 20 30 

Percent of respondents 



40 



Analysis of the male sample by age as well as race reveals distinctive patterns. 
Among men aged 18 to 24, black (50%) and white (48%) men are equally likely to 
report being stopped by police in the past two years,' while Chinese men (22%) are 
less likely to report being stopped. 



Table 10-2: Metro Toronto male respondents stopped by the police 
in the past two years, by race and age 



Age groups 


Black 


Chinese 


White 


% 


% 


% 


18 to 24 years 


50.0% 


21.7% 


47.6%> 


25 to 40 years 


47.7% 


19.4% 


28.9% 


41 years and over 


33.9% 


14.3% 


17.0% 


Total male sample 


42.7% 


18.9% 


25.1% 



This is the only category in which white and black male respondents report similarly high rates of police stops. A 
possible explanation is suggested by the finding that the police are more likely to stop people in vehicles that on 
foot. According to the most recent census data for Metropolitan Toronto, white respondents are generally wealthier 
than black respondents, which suggests that young white men are more likely than young black men to travel by car. 
Therefore one might expect young white men to experience more police stops than young black men. 



Community Policing 355 



Black men (50%) aged 18 to 24, however, are much more likely than both their 
white (24%) and Chinese (11%) counterparts to report two or more stops in the past 
two years. Every black man aged 18 to 24 who reported being stopped by the police 
said he was stopped more than once. By contrast, about half of the white or Chinese 
men in this age group who reported being stopped had been stopped on more than 
one occasion. 



Table 10-3: Metro Toronto male respondents stopped by the police 
two or more times in the past two years, by race and age 



Age groups 


Black 


Chinese 


White 


% 


% 


% 


18 to 24 years 


46.2% 


10.9% 


23.8% 


25 to 40 years 


33.0% 


6.9% 


16.9% 


41 years and over 


15.3% 


4.8% 


5.7% 


Total male sample 


28.7% 


7.4% 


12.3% 



Among men aged 25 to 40, black men (48%) are much more likely than white 
(29%) or Chinese (19%) men to report being stopped by the police in the past two 
years (Table 10-2). Black men (33%) in this age group are also much more likely 
than white (17%) or Chinese (7%) men in this age group to report two or more 
police stops (Table 10-3). 

These differences persist into the oldest age group. Among men aged 41 and older, 
34% of black men, compared with 17% of white and 14% of Chinese men report 
being stopped by the police in the past two years (Table 10-2). The data also show 
that 15% of black men aged 41 and older, compared with 6% of white and 5% of 
Chinese men in this age group report two or more police stops (Table 10-3). 

We also analyzed data on police stops reported by the sub-sample of male university 
graduates from all three groups. These indicate that black males (48%) with a 
university degree are much more likely than white (19%) or Chinese (1 1%) male 
university graduates to report being stopped by the police in the past two years. 
Black male graduates (39%) are also much more likely than white (1 1%) or Chinese 
(7%) male graduates to report two or more police stops. 



356 MOVING FORWARD 

Perceived fairness of police stops 

People stopped by the police may have many reasons to think they are treated 
unfairly. An officer may do or say something that embarrasses or humiliates them, 
or the real or perceived reason for the stop may seem unfair. To investigate this 
possibility, we asked everyone in the survey who had been stopped by the police in 
the past two years why they thought the police had stopped them. 

Overall, most people from all three groups thought they were stopped for a 
legitimate reason, such as a traffic violation, a routine automobile spot check or 
being drunk in a car or in a public place. But many black respondents strongly 
believe the police stopped them partly or wholly because of their race. For example, 
a young black man said the police stopped him "just for the heck of it. It was just 
the usual 'cops always stop black people' routine." And a young black woman said 
she was stopped because "I went to the Town Centre [shopping mall] on the wrong 
night. They [the police] call it 'nigger night' and they always stop black people. I 
wear a baseball cap so maybe I look tough to them. But I was just walking .... I 
used to want to be a cop but I forget it now, because I am black and it's a no-win 
situation." 

Some respondents felt the combination of their race and other factors led to the 
police stop. Among the other factors they identified are: 

• expensive cars - One black respondent said he was stopped "because we were 
three black guys in a BMW. We were not doing anything." Another said the 
police stopped him "because they saw a Lexus with a black driver. We were not 
speeding or anything. They had no real reason to stop us." 

perceived association with drugs - One man said he was stopped because "if 
you are black and you drive something good, the police pull you over to ask 
about drugs." Another man said he was stopped while walking "because I am 
black and it was late at night, so the police had a suspicion that I was selling 
drugs." Other black respondents said they were stopped because they were 
walking in areas perceived to be "drug infested." 

• white female companion - Some respondents felt that the police stop black men 
if they are accompanied by a white woman. One young man said he was stopped 
"because I was a black man in a car with a white woman." 

Some white people also mentioned race when asked why the police stopped them. 
But it was the race of their companion, not their own, that they said was significant. 
These respondents also connected race to other factors. For example, a young white 
male said he was stopped "because my friend was driving my Mercedes and he's 
black," and a white woman said she was stopped "because I was driving in a car 
with a black person." 



Community Policing 357 



Implications of findings 

What should we make of this evidence that black people in Metro Toronto are more 
likely than white or Chinese residents to be stopped by the police, to be stopped 
more than once, and to experience the stops as unfair? Put more directly, why do 
black men in cars attract so much police attention? Are black men more likely than 
other people to drive unsafely, to travel in unsafe vehicles, or in some way to 
provide police officers with a legitimate reason to stop them? Or is the answer, as 
Mr. Justice Walter Tarnopolsky suggested, that officers exercising their "wide 
discretion" choose to stop "a person obviously visible as being of a minority group 
over one who is more clearly of the majority ."^^ 

Clearly, the disparities in reported stops, particularly multiple stops, support 
complaints made to this Commission and previous inquiries that the police single 
out black men to display their authority and because they perceive the black men as 
warranting more scrutiny than other people. Furthermore, the differences in 
experiences of fairness suggest that some police officers make judgments based on 
race when deciding whom to stop. 

These data do not suggest, however, that all Metro Toronto Police officers are overt 
racists who consciously stop black people simply because they are black. As 
Michael Keith says, "such a simplistic and fundamentally arrogant diagnosis is 
manifestly implausible."^"* After all, many black respondents do not report being 
stopped by the police in the past two years. If all Metro Toronto Police officers 
were practicing racists who think black people are inherently criminal, then surely 
the differential between stops of white and black people would be much higher. 
Moreover, if racial hostility is the explanation, why would black women be stopped 
less frequently than black men? 

Though it is wrong to conclude that all police officers are practicing racists, the 
possibility that some openly prejudiced officers are responsible for a 
disproportionate number of stops of black people cannot be ignored. Police officers 
who talked to the Commission conceded that people with such prejudices continue 
to work for the police (though some also insisted that their prejudiced colleagues do 
not show bias on the job). Furthermore, findings of a race relations audit of the 
Metro Toronto Police published in 1993 suggest that despite the force's recent 
efforts to screen out candidates with racist attitudes when hiring, some officers show 
racial bias in their work.^^ 

The racial difference in the number and perception of reported stops suggests that 
the cause is not "a few bad apples" among the police. A more plausible explanation 
is suggested by research into why police officers view a person or situation with 
suspicion. Studies show that police officers react to combinations of factors they 
observe in individuals when deciding whether to initiate contact.^* They also show 
that in racialized societies, race may become a factor even if official rules prohibit 
discrimination. 



358 MOVING FORWARD 

The Commission's findings suggest that racialized characteristics, especially those of 
black people, in combination with other factors, provoke police suspicion, at least in 
Metro Toronto. Other factors that may attract police attention include sex (male), 
youth, make and condition of car (if any), location, dress, and perceived lifestyle. 
Black persons perceived to have many of these attributes are at high risk of being 
stopped on foot or in cars. This explanation is consistent with our findings that, 
overall, black people are more likely than others to experience the unwelcome 
intrusion of being stopped by the police, but black people are not equally vulnerable 
to such stops. 

As these findings show, police discretion to stop and question people may produce 
racial inequality in the number and nature of such contacts. These stops (particularly 
if unpleasant and also if frequent) breed distrust and suspicion of the police among 
black and other racialized people. If community policing is to succeed where 
traditional policing has failed to produce racial equality, police exercise of their 
discretion to initiate contacts with people must change. 

This task is particularly challenging because community policing promotes more, not 
less, contact between police officers and members of the community. Effective 
problem-solving and crime prevention, for example, requires close working 
relationships between police officers and members of local communities. 
Furthermore, the community policing model of law enforcement depends on 
considerable citizen co-operation with the police, particularly in supplying 
information about the activities of individuals or groups." 

Of course, police-citizen encounters in the community policing model are intended 
to be less confrontational and more constructive than under the traditional policing 
regime, and they are not intended to produce racial inequality. It is clear from the 
Commission's research, however, that while good intentions are important, they are 
not enough to overcome the barriers created by differential policing. Many black 
and other racialized people, particularly youths, are sceptical about the value of 
intentions alone. Consequently, as well as changing how officers exercise discretion, 
community policing must also build confidence in the community that such changes 
are real, meaningful and permanent. Police must, in short, find ways to demonstrate 
that differential stopping of people because of race alone or in combination with 
other discriminatory factors is unacceptable. 

To achieve these goals, community policing requires practical guidelines for the 
exercise of police discretion, training to enable officers to avoid racial differentials 
in the exercise of their discretion, and monitoring of police practices. For increased 
effectiveness, popular education and outreach programs should inform community 
members of their rights and shared responsibility for community security, as well as 
the legitimate boundaries of police action. 

The guidelines for police discretion should supplement and elaborate on the general 
standards set out in the Canadian Charter of Rights and Freedoms, the Ontario 



Community Policing 359 



Human Rights Code, and recent judicial decisions that require the police to have 
"articulable cause" to stop and question individuals.^^ Such guidelines should state 
clearly what factors do or do not give police officers grounds for exercising this 
powerful discretion, and illustrate prohibited factors with realistic examples. In 
developing appropriate guidelines, the test of "reasonable suspicion" currently 
employed by a United Kingdom Code of Practice governing police should be 
considered. This test states: 

Reasonable suspicion cannot be supported on the basis simply of a higher than 
average chance that the person has committed or is committing an offence, for 
example, because he belongs to a group within which offenders of a certain kind are 
relatively common or because of a combination of factors such as these. For 
example, a person's colour can never be a reasonable ground for suspicion. The 
mere fact that a person is carrying a particular kind of property or is dressed in a 
certain way or has a certain hairstyle is likewise not of itself sufficient.' 



39 



10.5 The Commission recommends that - 

a) the Ministry of the Solicitor General and Correctional Services, in 
consultation with the police services and local community organizations, 
develop guidelines for the exercise of police discretion to stop and question 
people, with the goal of eliminating differential treatment of black and other 
racialized people. 

b) these guidelines be translated into the most common languages spoken in 
Ontario and circulated widely. 

Guidelines should be reinforced by monitoring. One method of monitoring practices 
is to solicit feedback on police officers' performance from persons who have been 
stopped. At present, the main mechanism for obtaining feedback is the public 
complaints system, but it appears not to be effective. 

There are two main problems with the complaints system. First, many people either 
do not know about it or have little confidence in it. Thus, vital feedback is lost to 
the police and the community. Second, its exclusive focus on finding individual 
fault sufficient to justify disciplinary action means that general problems arising 
from accepted practices and policies are not addressed. 

The punitive dimension of the complaints system is clearly central to the police 
disciplinary process, and as such is seen as important for maintaining the 
accountability of individual officers. Without limiting this role, improvements in 
collecting and processing complaints would increase their effectiveness as a means 
of monitoring and then remedying racial inequality in police practices. 

Openness, integrity and effectiveness of the complaint process are key to effective 
community policing. In this light, we note that the Metropolitan Toronto Police have 
recently adopted the principal recommendations proposed by the municipality's 
auditor to enhance the effectiveness of complaints as a monitoring device.''" These 



360 MOVING FORWARD 

measures should form the basis of a model for use throughout the province. The 
Ministry of the Solicitor General and Correctional Services is in the best position to 
implement such an initiative comprehensively. 

To make this model more accessible, we also propose that community agencies be 
better equipped to encourage people to use complaints mechanisms. For example, 
community agencies (such as legal clinics, women's shelters, assault help-lines and 
youth groups) should receive funding that would allow them to provide information 
and advice about how to complain. A small booklet, for example, could provide 
information on complaints mechanisms for school courses as well as community 
education. The public responsibility and importance to the criminal justice system of 
pursuing valid complaints should be emphasized. 

10.6 The Commission recommends that the Ministry of the Solicitor General 
and Correctional Services, in consultation with community agencies - 

a) formulate a Public Complaints Policy Statement and distribute it widely 
among their local communities. This statement should emphasize the function 
of complaints not only in responding to specific incidents, but also in helping to 
identify and resolve systemic problems. 

b) develop a comprehensive public complaints database that includes categories 
that would allow the police to monitor complaints about police stops of black or 
other racialized people. The database should be used to generate quarterly 
reports of patterns and trends. 

c) fund education on formal and informal police complaint mechanisms. 

Community policing and school discipline 

Schools are central institutions of the community and dominant in the lives of young 
people. Attitudes formed during school years have a lasting impact, as do positive or 
negative experiences of the police within school settings. Consequently, community 
policing needs to pay special attention to relationships among the police, schools 
and students. In particular, the police, police services boards and the community 
policing committees we propose must take responsibility for shaping the police roles 
on school property. 

Many Ontario schools have long-standing co-operative relationships with local 
police services. These relationships generally include an increased police presence in 
schools for personal and traffic safety education, to provide information about 
proactive and reactive police roles in communities and schools, and to respond to 
conflicts involving students. 

In recent years, much discussion of the role of the police in schools has concerned 
violence among students and other forms of harmful behaviour. Initially, some 
school boards responded by creating policies for calling the police in some 
circumstances. These "safe schools" programs do not generally require police 
intervention or laying criminal charges - both the schools and the police retain 



Community Policing 361 



considerable discretion - but they explicitly accept that a range of harmful or 
inappropriate behaviours in schools should be treated as criminal offences. 

In November 1993, the Ministry of Education made existing practices more formal 
when it directed school boards to complete (or review) their policies on violence 
prevention by September 1995.'" While the boards have some flexibility over their 
policies, procedures and implementation plans, the Ministry requires police 
intervention for some types of in-school incidents, such as weapons and drug 
offences, and serious assaults. This approach is sometimes known as ''zero 
tolerance" of violence, although police intervention is only one aspect of the 
initiative. 

Safety in schools is obviously a vital issue, and the criminal process is sometimes an 
appropriate response to student behaviour. But the criminal law should be used with 
restraint so that ''zero tolerance" does not become a vehicle for over-criminalization 
of students. During the Commission's consultations across Ontario, many black 
youths and their parents voiced serious concerns that neither schools nor the police 
are exercising restraint. They said the police are often summoned for trivial 
incidents that schools once handled internally. For example, we received numerous 
accounts of police responses to playground fights that led to common assault 
charges, and of responses to students playing with penknives, which were viewed as 
weapons. Even if charges were not laid in such incidents, encounters with the police 
were deeply resented by black young people and their families. 

Participants in our consultations believed that the application of safe school policies 
is targeting black students. They maintained that some schools are quick to summon 
the police when black students are alleged perpetrators of harmful or inappropriate 
behaviour, but are more likely to handle similar behaviour by white students or 
other racialized students internally. While anger was mainly directed at the schools, 
youths and their parents were also disturbed by what they perceived as police 
complicity in unjust treatment. 

The Commission was surprised by the frequency with which this issue arose, and 
concerned about its implications for community policing. To find out more about the 
extent of perceived injustice in school disciplinary practices, we surveyed staff and 
students of 1 1 urban secondary schools under the jurisdiction of two boards of 
education. 

The surveys produced 569 staff responses, from principals, vice-principals, 
classroom teachers, educational assistants and guidance counsellors. Most 
respondents (56%) have been employed as school staff for at least 16 years. Women 
(49%) and men (51%) are equally represented in the sample, and the majority of 
respondents are white (84%). 



362 MOVING FORWARD 

The student surveys obtained 2,172 secondary school responses, of which 44% are 
female and 56% male. Respondents" ages range from under 14 to over 20, but most 
(86%) are aged 15 to 18. White students make up 47% of the total sample, black 
students 14%, East Asian students 14% and South Asian students 10%. Students 
who identified themselves as members of "other racial minority groups" account for 
15% of respondents. About a third (34%) of the sample come from a professional 
home, 40% have parents in supervisory or skilled occupations, and \9% have 
parents in semi-skilled or unskilled occupations; 7% have parents without paid work. 

Analysis of survey responses reveals three disturbing findings. First, a third of staff 
members (35%) think black students are more involved than white students in 
incidents that "require" police intervention at school. Only 1% of staff members 
think black students are less involved in such incidents than white students. Despite 
this belief, the staff generally do not perceive "zero tolerance" policies to be 
targeting students from black or any other racialized communities. Three in four 
staff respondents (78%) believe the policies are not targeting students from any 
particular racial or ethnic group; only 5% believe the policies do target a particular 
group. 

One interpretation of these apparently inconsistent opinions is that some staff think 
black students behave differently from others. To them a need for more frequent 
police intervention may simply reflect their judgments about students' conduct, 
rather than evidence of differential staff responses or targeting. A few staff members 
made remarks to this effect on their surveys. One was crudely racist: "Everyone 
wants to avoid the truth that certain black cultures are criminal and in conflict with 
most other cultures morally." Other staff distanced themselves from explicit racism, 
but still suggested that teachers and students believe black students are aggressive or 
violent. A white female staff member stated, for example, that "teachers are afraid 
of black students and are less likely to confront them for that reason." A white male 
staff member commented that "other ethnic and racial minorities have complained 
about the aggressiveness of black students, which frequently leads to confrontation." 

By contrast, some staff commented on racialized dynamics that may lead teachers 
wrongly to perceive black students' behaviour as dangerous. These staff 
emphasized: 

• stereotyping - "By default, the search for 'troublemakers' more often than not 
rests on the 'so-called' 'Jamaican' black kid - usually male, but sometimes 
females. It is as if we look for 'trouble' there first. I believe this is a 'perception' 
or stereotype that has emerged." (white male staff member) 

• racist provocation of students - "Often black or other racial minority students 
seem to be more involved in incidents that require suspension because they are 
targeted by white students or pushed to physical responses by verbal barbs." 
(white female staff member) 

• teachers' misinterpretations of unfamiliar cultural norms - "Fear is also a 
factor as to why teachers do not approach black students. If they understood 



Community Policing 363 



some cultural points, such as [that] the loudness of black youth is not something 
to fear, etc., then they would be a little less afraid to approach these young black 
students." (black female staff member) 

The second disturbing finding is that more than half (56%) of the staff respondents 
believe that teachers are less likely to confront black students for fear of being 
called racist and a third (33%) believe teachers may avoid confronting other racial 
minorit>' students for that reason. Comments on student surveys suggest that 
teachers' fears are known to their classes. A white male student stated, for example, 
■'I feel that teachers are somewhat afraid to point the finger at minority students 
because they are afraid they will be called bigots." A white female student remarked 
that "teachers are very careful around racial minority students because any little 
confrontation can be blown out of proportion and be looked at as racial 
discrimination." A black student described the frustration he feels when teachers 
react apprehensively: 

"As a black person I've noticed teachers taking two steps backward in dealing with 
me .... [I]f teachers automatically put their guard up every time a minority student 
walks into a classroom, then nothing will ever get done. The minute the teacher's 
guard goes up, so does the student's. Some black people might deem a teacher racist 
because the teacher deals with the student in such an apprehensive, 'I'm not even 
going to try to reach out to you,' kind of manner." 

Obviously, findings that school authorities are more likely to request police 
intervention for black students may be due to the reluctance of teachers to confront 
these students. For example, the possibility of calling the police offers staff an 
alternative to directly confronting black students whose behaviour is harmful or 
inappropriate. They may thus describe a student's misbehaviour as sufficiently 
serious to persuade the principal or vice-principal to call the police. Police officers 
who are summoned in these circumstances may in turn learn to perceive black 
students as more troublesome, because a disproportionate number of school calls 
tend to concern them. This perception may then fuel even greater suspicion of black 
youths. 

The third disturbing finding is that black students widely perceive racial differentials 
in their schools' use of the police and in how police officers treat black students. 
For example, 50% of black students believe their school is "more likely" to call the 
police over incidents involving black students than students from other racial 
groups. By contrast, only 4% of white, 9% of East Asian and 1 7% of South Asian 
students believe their school is more likely to call the police over incidents 
involving members of their racial groups than students from other racial groups.* 



These students were asked only about their own racial group. Thus we do not know if white, South Asian or East 
Asian students also think black students receive difTerential treatment. 



364 MOVING FORWARD 

Asked whether the police, once called to their school, treat all students the same 
regardless of race, 53% of black students responded that the police treat black 
students worse than those from other racial groups. A substantial proportion of 
South Asian students (28%) believe that the police treat members of their racial 
group worse than others. Only 4% of white students and 14% of East Asian students 
feel that the police treat members of their racial groups worse than others. 

Though black students are much more likely than others to think the police are more 
suspicious of racial minority students than white students, this opinion was 
widespread. More than two-thirds of black students (69%), close to half of South 
Asian students (44%) and more than a third of East Asian (37%) and white (35%) 
students agree or strongly agree that "in general, the police seem more suspicious of 
racial minority students than white students." 

These findings are consistent with what the Commission heard during our 
consultations. They suggest that black students who attend these schools believe 
they are more likely than other students to be subjected to the criminal justice 
process and have little confidence that the police will correct unjust treatment by 
school authorities. The perception that the police discriminate against racial minority 
students is widespread among all students. 

While this study is provisional and exploratory, its findings are cause for concern. 
That so many black students feel their schools and the police treat black students 
worse than others indicates a profound mistrust of these institutions, which may 
seriously impede black youths' acceptance of community policing. The school 
system needs to find an effective response to this problem, but the Commission has 
no mandate to make recommendations for changes to schools. The implications for 
community policing, however, should be addressed by police service boards in 
concert with the community policing committees we propose. 

Policies for involving the police in schools must not compromise community 
policing in the local area. Police agencies ought to be flexible in dealing with 
schools, just as with any other part of the community, but they also should ensure 
that the schools' use of policing resources is consistent with locally defined policies, 
objectives and standards. We envisage detailed policy consultations between 
community policing committees and school boards, as well as CPC monitoring of 
practices. In addition, CPCs should inform youths and parents of policing policy in 
local schools and convey community concerns to appropriate school authorities. To 
ensure that policing in schools is a priority for CPCs, a committee position might be 
reserved for a student or staff member of a local school. 

10.7 The Commission recommends that police services boards, in concert with 
their community policing committees - 

a) ensure that policies for policing schools reflect the goals of community 
policing policies and standards in the local area. 



Community Policing 365 



b) initiate consultations with school authorities regarding board of education or 
school-based policies on calling the police into schools. 

c) inform parents and youths about school policing issues, and convey concerns 
about the content or implementation of relevant policies to school authorities. 

Community policing and mall security 

Poor relationships between private security officers and youths may have a 
significant impact on community policing. Young people often do not distinguish 
between police and private security officers because they are generally more 
concerned about what happens to them than whether officers are authorized to act 
by public or private employers. The Commission's research suggests that community 
policing authorities should be alert to the risk that negative experiences with private 
security officers may undermine initiatives to promote racialized youths' confidence 
in public policing services. 

Many complaints about unfair policing of racialized young persons concern security 
officers employed in malls, universities, housing complexes and other publicly used 
spaces. Examples of abusive conduct reported to the Commission include name- 
calling using racial epithets, intrusive questioning, arbitrary requests to empty purses 
or pockets, excessive scrutiny and petty violence. As well as complaining about 
being "hassled"' or harassed in these ways, youths bitterly resent being excluded 
from malls and other publicly used spaces, apparently at the whim of security 
officers. 

The authority by which security officers eject or ban people from malls or other 
publicly used spaces is the provincial Trespass to Property Act.'*' This legislation 
provides that a legal occupier of property or a security guard (or other person) 
authorized by an occupier may direct a person to leave the property. No reason or 
justification for the decision need be given. If the person so directed does not leave 
immediately, he or she can be charged with the offence of trespassing. If convicted, 
the person can be fined up to $1,000. 

This legislation has been widely criticized on several grounds. First, many 
commentators have noted that concepts of public and private space have become 
increasingly blurred over the past few decades. In particular, shopping malls have in 
the public mind become facilities to which the public has virtually unlimited access, 
even though the malls are usually owned and leased out by private companies. 

Second, the legislation does not require any objective evidence of misconduct or 
social harm before a person can be ordered to leave. Third, it contains no limitation 
on how long a person can be banned. Finally, when a security guard orders someone 
to leave and the person does not go immediately, and the security guard then 



366 MOVING FORWARD 



decides to arrest and charge the person, the police must be called in.' The police 
involvement frequently feeds the perception, particularly among racialized youth, 
that the police are acting as agents of the private owner. 

As noted in the report of the Task Force on the Law Concerning Trespass to 
Publicly-Used Property as it Affects Youth and Minorities (the Anand Report), 

The evidence indicates that, far from avoiding escalation, the [Trespass to Property 
Act] is a cause of it. The disturbing gap between community expectations and the 
law concerning the rights of visitors to publicly-used property frequently results in 
frustration and verbal altercations between visitors and security guards, police 
officers and managers. The visitor's refusal to leave and the guard's refusal to give a 
reason lead inexorably to physical confrontation in the form of arrest, detention and 
removal. This tendency is particularly troubling in light of the frequent lack of 
training or sensitivity on the part of the owner's agent. For police officers as well, 
there is the unsettling reality that under the [Act], they must 'take sides' with the 
owner. Thus, trespass charges of^en accompany or are overtaken by more serious 
charges such as assault and obstruction of justice."" 

The Task Force found considerable evidence of- 

a widely held perception among minority groups and young people that the Trespass 
to Property Act is enforced in a discriminatory way against them. Congregating in 
groups is seen as acceptable for those who are white, normal or "middle class" in 
their appearance, but as threatening or disruptive for the young, for visible 
minorities, for the poor, and generally for those exhibiting an "alternative 
lifestyle."" 

Little appears to have changed since the report was published in 1987. The 
Commission heard repeatedly from black and other racialized youths that mall 
security officers target them. They reported excessive scrutiny of their activities, 
rudeness and aggression on the part of security officers, and discrimination in 
issuing "banning orders" under the Trespass to Property Act. Many youths also 
maintain that security officers overreact and embarrass or humiliate them by calling 
for assistance from the publicly employed police. Two examples, drawn from many 
complaints we received, illustrate these experiences. 

A young black man reported this incident: 

"I've only had one experience with the police, and it also involved mall security. It 
was a Saturday morning, and me and my friends were meeting in front of the record 
store because we were planning to go to the beach that day. There were about nine 
of us. We were joking around when the record store owner came out and told us to 
get away from his store. We immediately took offence at that. He told us [that] if 



Section 9(2) of the Act provides that when a person enters premises where entry is prohibited, or refuses to leave 
after having been ordered to do so, that person may be anested by a security officer. The security officer is then 
obligated to call tlie police and to turn the arrested person over to a police officer. The police officer is required to 
arrange for the alleged trespasser to attend court to face the trespass charge. 



Community Policing 367 



we didn't leave he would call mall security. We said 'go ahead.' About ten minutes 
after that, two security guards came and asked us to leave. We told the guards we 
weren't doing anything wrong and this was a public place. One of the guards called 
the police. Within 15 minutes there were six cops escorting us outside the mall. One 
of them said that we were disturbing the peace, and another that we were bad for 
store business if we remained inside." 

One of our researchers interviewed a group of 16-year-olds consisting of three black 
males, three black females, one Chinese male and one white male. The researcher 
reported: 

"They were all at a sports store looking around when a security guard told them to 
leave the mall because they were making a lot of noise and were a nuisance, and he 
didn't think they were buying anything. One of the girls refused to leave, saying it 
was not illegal to look ... Another guard came. The guards were adamant that the 
youths leave because they said that kids steal a lot of goods and the youths were 
dressed in clothes meant to conceal stuff After much argument, the police came and 
the youths were ushered out. The police told the youths to leave the area and not to 
be seen hanging around the mall again. The police didn't even ask their side of the 
story, but just sided with [mall] security." 

As pail of a study funded by the Commission, a Filipino community organization 
documented the experiences of 33 Filipino youths who frequented a mall in Metro 
Toronto. Almost half (45%) reported harassment by security officers, which 
included racially abusive language, searches and inspections of their purchases. The 
youths also reported being refused entry, forcefully evicted and threatened with 
sanctions. Some had been banned from the mall for defined periods, or indefinitely. 

An incident described by one young woman typifies the experience of youths in the 
study: 

"I have had many experiences with the [mall] security guards. For example, one day 
I wanted to buy a pair of earrings, so after school my friends and I went to the 
[mall]. We bought some earrings and then went back to the Food Court to grab a 
bite to eat. We had just sat down to a table when a security guard came up to us 
and told us we should finish our meal quickly. I told him we had just sat down and 
we were going to do some more shopping. He then asked me what I had bought. I 
showed him my earrings and he told me to show him the receipt. I actually had to 
dig through my purse, find the receipt and show him. It was really annoying! I hate 
all these racial problems that the [mall] is experiencing now. I used to like going 
there; now it is no longer a pleasure." 

Clearly, many racialized youths in Ontario urban centres deeply resent what they 
experience as over-policing by mall security officers. Our consultations also suggest 
that this resentment influences these youths' views of police officers, whom they 
perceive to be part of the system of unwelcome and intrusive authority. Thus, 
solutions to the problems of private policing of malls may both reduce tension 



368 MOVING FORWARD 

between youths and security officers, and also alleviate any spillover effect on 
community policing. 

Despite the Anand Report's trenchant criticisms of this private security power as 
overly broad and highly susceptible to misuse, the Ontario legislature has not 
curtailed it. While some mall managers have greatly reduced their reliance on this 
power, in most malls the discretion is fully available and may be used arbitrarily or 
unreasonably.''^ The Commission fully endorses the Anand Report's 
recommendations for limiting the discretion to exclude persons from publicly used 
spaces, and urges the Government to implement them. 

We propose reforms to two elements of the private policing system. The first would 
restrict the discretion to exclude persons from publicly used spaces. Exclusion 
should be possible only when based. on an objective standard of misconduct. We see 
no need for banning orders in any circumstances, since repeated misconduct can be 
met by repeated invocation of the exclusion power. 

10.8 The Commission recommends that the Trespass to Property Act be 
amended - 

a) to include a definition of misconduct sufficient to justify exclusion or 
detention of a visitor to publicly used space, and to make such misconduct a 
condition to ordering exclusion or detention. 

b) to abolish the right to ban a visitor from publicly used space. 

A potential danger with this recommendation is that security officers may 
compensate for the loss of their private authority to ban individuals by requesting 
more frequent intervention of the public police. Accordingly, community policing 
committees should generally monitor the demands that private security officers place 
on community policing services. 

Our second recommendation concerns licensing and training in the private policing 
industry, now as large as the public police service.''* At present, Ontario requires 
security officers to be licensed if they work for specialized companies that supply 
security services. Directly employed security staff, however, need not be licensed by 
the province; and neither type of security officer is required to undergo training for 
serving diverse multiracial communities. 

Some large organizations, such as universities, conduct in-house training on serving 
diverse communities, or engage an external security firm to supply trained officers. 
Security firms that bid for government contracts may also provide "race relations" 
training to comply with government demands. A private security expert who 
attended a Commission public forum suggested, however, that adequate training on 
anti-racism, se.ving diverse communities or "race relations" is the exception. This 
participant insisted that the security industry "cannot be trusted to be self- 
regulatory" in this matter. 



Community Policing 369 



The Ministry of tiie Solicitor General and Correctional Services is currently 
reviewing the legislation that governs this industry. In light of the complaints we 
received, it is crucial that this review be sensitive to the adverse experiences of 
black and other racialized youth under the current regime, so that new legislation 
may address the problems. In particular, we consider it important to establish an 
ongoing consultative mechanism so that these voices are heard throughout the 
review and any ensuing process of legislative change. We also propose that as part 
of its review, the Ministry should consider using the licensing regime to require all 
security officers to complete anti-racism training. 

10.9 The Commission recommends that as part of its review of the Private 
Investigators and Security Guards Act, the Ministry of the Solicitor General and 
Correctional Services - 

a) undertake extensive consultation to ensure that the legislation responds to 
the needs of youths, and the particular concerns of black and other racialized 
youths. 

b) examine whether the legislation's licensing requirements should continue to 
exclude security officers who police publicly used space. 

c) consider requiring security officers policing publicly used space to complete 
anti-racism training programs in order to qualify for or keep their licence. 

d) consider having the Registrar of Private Investigators and Security Guards 
designate certain anti-racism programs as appropriate. 

In addition to these recommendations to the Government of Ontario, the 
Commission has a suggestion for mall owners and managements. Clearly, their 
interests are not well served when security officers act abusively, harass visitors, or 
are otherwise unreasonable. However, mall owners and managers have little 
knowledge of the experiences of young mall-users, who in turn may not know their 
rights under the Trespass to Property Act or how to complain about security 
officers. While the current law may be of only limited assistance to youths who 
have concerns about their treatment, they should at least know where they stand. 
Mall owners could help by posting conspicuous signs that explain, in clear and 
simple language, the principal provisions of the Trespass to Property Act; and 
outline procedures for complaining about security officers. 



370 MOVING FORWARD 



Endnotes 



1. 



3. 



Peter Campbell, Deputy Commissioner of the Ontario Provincial Police, and Organizational 
Strategies Group Inc., Leadership in Turbulent Times: A Discussion of the Role of Police 
Leaders in the Initiation and Management of Change (Toronto: Ministry of the Solicitor 
General of Ontario, February 1991), p. 1. 

Andre Normandeau and Barry Leighton, A Vision of the Future of Policing in Canada: 
Police Challenge 2000 - Background Document (Ottawa: Ministry of the Solicitor General 
of Canada, 1990), p. 41. 

This phrase is the title of a series of manuals on community policing published by the 
Ontario Ministry of the Solicitor General and Correctional Services in collaboration with the 
Ministry of the Solicitor General of Canada, Community Policing: Shaping the Future 
(Toronto: Queen's Printer for Ontario, 1991-1994). 

The slogan of a recent police training package for the Ontario Provincial Police is 
"Community Policing is the only way we do our business" (emphasis in original). Ontario 
Provincial Police, Shaping Our Future: Community Policing Video Training (Brampton: 
Provincial Police Academy, 1993). See also Ottawa Police, Planning and Research Section, 
Community-Based Policing in the Nation's Capital: An Overview (Ottawa: Ottawa Police, 
November 1993). 

See the following reports on community policing projects of the Metropolitan Toronto Police 
over the last 15 years: Leah Lambert, "Community-Based Policing: The Toronto Mini- 
Station Pilot Project," paper presented to the 1984 convention of the American Society of 
Criminology (unpublished); A.R.A. Consultants, "Final Report on the Evaluation of the 
Toronto Mini-Station Pilot Project," November 1984 (unpublished); Chris Murphy and J. de 
Verteuil, "Metropolitan Toronto Community Policing Survey Working Paper No. 1," 
Research and Statistics Group, Solicitor General of Canada, No. 1986^7; Leah Lambert, 
"Police Mini-Stations in Toronto: An Experience in Compromise," Royal Canadian Mounted 
Police Gazette vol. 50, no. 6 (1988), pp. 1-5; A.R.A. Consultants, "An Assessment of the 
Metropolitan Toronto Police Force Community-Police Planning Project: A Report to the 
Ministry of the Solicitor General of Canada and the Metropolitan Toronto Police Force," 
March 1988 (unpublished); Chief William McCormack, "Information Requested by the 
Board Pertaining to the Activities and Progress in the Implementation of Community 
Policing," memorandum to the Metropolitan Toronto Police Services Board, March 22, 1991; 
C. Whynot and G. Stewart, "53 Division Pilot Project: Community Partners' Evaluation," 
Oct. 23, 1992 (unpublished); Metropolitan Toronto Police, "Summary Report on the 
Evaluation of the Beyond 2000 Implementation Pilot Project: Command Summary," 
November 1994 (unpublished). 

George Kelling and Mark Moore, "The Evolving Strategy of Policing," Perspectives on 
Policing no. 4. (Washington: National Institute of Justice and Harvard University, 1988), p. 
6. 

See generally, James Chacko and Stephen Nancoo, eds.. Community Policing in Canada 
(Toronto: Canadian Scholars' Press, 1993); Dieter Dolling and Thomas Feltes, eds.. 
Community Policing: Comparative Aspects of Community-Oriented Police Work 
(Holzkirchen: Felix-Verlag, 1993); Herman Goldstein, "Toward Community-Oriented 
Policing: Potential, Basic Requirements and Threshold Questions," Crime and Delinquency 



10. 



II 



Community Policing 371 



vol. 33, no. 1 (1987), pp. 6-30; Herman Goldstein, Problem-Oriented Policing (New York: 
McGraw-Hill, 1990): George Kelling, "Acquiring a Taste for Order: The Community 
Police," Crime and Delinquency vol. 33, no. 1 (1987), pp. 90-102; Chris Murphy and 
Graham Muir, "Community-based Policing. A Review of the Critical Issues," Technical 
Report TRS No. 6 (Ottawa: Ministry of the Solicitor General, Programs Branch, 1984); Chris 
Murphy, "The Development, Impact and Implications of Community Policing in Canada," in 
J. Greene and S. Mastrofski, Community Policing: Rhetoric or Reality (New York: Praeger, 
1988); Normandeau and Leighton, Vision of the Future of Policing in Canada (note 2); 
Jerome Skolnick and David Bayley, The New Blue Line (New York: The Free Press, 1986); 
Jerome Skolnick and David Bayley, Community Policing: Issues and Practices Around the 
World. (Washington: U.S. Department of Justice, National Institute of Justice, 1988); Robert 
Trojanowicz, "An Evaluation of the Neighbourhhod Foot Patrol Program in Flint. Michigan" 
(East Lansing, Mich.: National Neighbourhood Foot Patrol Centre, 1982); Robert 
Trojanowicz and Bonnie Bucqueroux, Community Policing (Ohio: Anderson Press, 1990). 

Chris Murphy "The Development, Impact and Implications of Community Policing in 
Canada," in Chacko and Nancoo, Community Policing in Canada (note 5). 

Ottawa Police, Community Policing Centres: 1993 Annual Report, p. 1. 

See note 4. 

Normandeau and Leighton, Vision of the Future of Policing in Canada (note 2), p. 44; 
Dennis Forcese, Policing Canadian Society (Scarborough: Prentice-Hall of Canada, 1992); 
see generally references at note 5. 

Text of presentation to the Commission by Deputy Chief Christine Silverberg of the 
Hamilton- Wentworth Regional Police Service on behalf of the Ontario Association of Chiefs 
of Police, Oct. 21, 1993, p. 7. 

Cardinal Gerald Emmett Carter, Police Report to the Civic Authorities of Metropolitan 
Toronto and its Citizens (Toronto: [Catholic] Archdiocese of Toronto, 1979); John M. 
Gandy, Law Enforcement - Race Relations Committees in Metropolitan Toronto: An 
Experiment in Police-Citizen Partnership (Toronto: Social Planning Council, 1979); 
Canadian Association of Chiefs of Police, Proceedings of the Symposium on Policing in 
Multicultural/Multiracial Urban Communities, Oct. 14-16, 1984, Vancouver (Ottawa: 
Secretary of State and Canadian Association of Chiefs of Police Research Foundation, 1984); 
Metro Toronto Task Force on Human Relations, chair, Walter Pitman, Now is Not Too Late 
(Toronto: Council of Metropolitan Toronto, 1977); Province of Ontario Race Relations and 
Policing Task Force, chair, Clare Lewis, Report of the Race Relations and Policing Task 
Force. (Toronto: The Task Force, 1989); Kathryn E. Asbury, Building Police Community 
Partnerships with Culturally, Racially and Linguistically Diverse Populations in 
Metropolitan Toronto (Toronto: Council on Race Relations and Policing, 1992); Province of 
Ontario, Task Force on the Racial and Ethnic Implications of Police Hiring, Training, 
Promotion and Career Development, Report, chair, Reva Gerstein (Toronto: Ministry of the 
Solicitor General, 1980); The Liaison Group on Law Enforcement and Race Relations 
"Changing Attitudes for the Eighties," proceedings of a seminar on police/community 
relations (Toronto: Liaison Group, 1980); Secretary of State for Multiculturalism and 
Citizenship Canada, Federal Report on Policing in a Multicultural Society: October 1989 
(Ottawa: Secretary of State for Multiculturalism and Citizenship, 1989); Joseph R. Manyoni 



372 MOVING FORWARD 



and Michael Petrunik, Race Relations and Crime Prevention in Canadian Cities (Ottawa: 
Federation of Canadian Municipalities, 1989); M. Schiff, A Report on Police-Visible 
Minority Relations: Updating the Strategy (Ottawa: LRS Trimark Ltd, November 1988). 

Metropolitan Toronto Police, A Review of the Recruitment and Selection of Metropolitan 
Toronto Police (Toronto: Metropolitan Toronto Police Force, 1984); Harish C. Jain, The 
Recruitment and Selection of Visible Minorities in Canadian Police Organizations: 
1985-1987 (Hamilton: McMaster University, Faculty of Business, 1988); Greater Toronto 
Region Working Group on Policing in Multicultural and Muhiracial Urban Communities, A 
Series of Guidelines for Policing in Multicultural and Multiracial Urban Communities 
(Toronto: Greater Toronto Working Group, 1990); Ottawa Police, "Multicultural Police 
Recruitment and Selection (Ottawa: Board of Commissioners of Police, 1989); Metropolitan 
Toronto Police, Fifth Employment Equity Report (Toronto: Metropolitan Toronto Police, 
February 1991); Monica Armour, ed., Guidelines for Intercultural/Race Relations Training 
for Police Personnel (Toronto: The Greater Toronto Region Working Group on Policing in 
Multicultural, Multiracial Urban Communities, February 1990); Council on Race Relations 
and Policing, Working Report on Job-Centred Cross Cultural and Race Relations Training of 
Metropolitan Toronto Police Officers (Toronto: Council on Race Relations and Policing, 
1988); Senaka K. Suriya, Toward Employment Equity: The Representation of Visible 
Minorities in Canadian Police Forces - A Public Policy Review (Ottawa: Carleton 
University, Geography Department, 1990). 



13. 



See Commission on Systemic Racism in the Ontario Criminal Justice System, "Can 
Community-Based Policing Effectively Serve Black and Other Racial Minority 
Communities? Some Community Voices: Report of the Community Policing Forum, June 
7-8, 1993," (manuscript on file). 

''* Report of the Race Relations and Policing Task Force (note 11), pp. 4-5 (executive 
summary). 

'^ Metropolitan Toronto Police, Moving Forward Together: An Integrated Approach to Race 
Relations (Toronto: Mettopolitan Toronto Police Force, July 1994), p. 2. 



16. 



18. 



19. 



20. 



Ibid., p. 4 (forward by Deputy Chief James W. Clarke). 

Gail Swainson, "Report Slams Metro Police for Dossiers on Black Activists," Toronto Star, 
June 24, 1994; Colin Vaughan, "How about Tighter Surveillance Controls?" The Globe and 
Mail, Toronto, June 27, 1994; A. Alan Borovoy, "Asking Questions about how Police 
Collect Information," Toronto Star, April 13, 1994. 

Letters to Susan Eng, chair. Metropolitan Toronto Police Services Board, from Peter 
Rosenthal, April 18, 1994 and Urban Alliance on Race Relations, July 20, 1994 (on file). 

R.S.O. 1990, c. P.15, s. 31. 

Quoted in Susan Eng, "The Governance of Policing: The Division of Powers and 
Responsibilities Between the Board and the Chief of Police," speech to the Ontario 
Association of Police Services Boards Fall Conference, Oct. 3, 1992 (manuscript on file). 

Ibid. 



22- 



24, 



25, 



26. 



27. 



28. 



29. 



30. 



32. 



Community Policing 373 



See, for example, the discussion of the need for the board to refrain from intervention in 
day-to-day management issues in the Ontario Civilian Commission on Police Services, 
Report of an Inquiry into Administration of an Internal Investigation by the Metropolitan 
Toronto Police Force (Junger Inquiry) (Toronto: Ontario Civilian Commission on Police 
Services, August 1992). 

Metropolitan Toronto Police Force, Research and Planning Unit, "Community-Policing 
Planning Project: Interim Progress Report," April 1, 1987. Cited in Ontario Ministry of the 
Solicitor General, "Developing a Community Profile" (1992), p. 1. 

Ottawa Police, Community-Based Policing in the Nation's Capital (note 4), p. 7. 

Ibid., p. 8. 

Ontario Ministry of the Solicitor General, Policy Development and Co-ordination Branch, 
"Community-Based Policing," (1992), cited in "Developing a Community Profile" (note 23), 
p. 1. 

Chris Braiden, "Community Policing: Nothing New Under the Sun" (Dec. 10, 1987) 
(manuscript on file), p. 4. 

An extensive analysis of events leading up to the raid is contained in the decision of 
Nicholas Prov. Div. J. in R. v. Guntley Lewis, Nov. 13, 1992, unreported (manuscript on 
file). 

Trevor Jones, Brian D. MacLean and Jock Young, The Islington Crime Survey: Crime 
Victimization and Policing in Inner-City London (Aldershot: Gower, 1986). 

Police-administered surveys are recommended in a Ministry of the Solicitor General and 
Correctional Services manual on community policing. See A.R.A. Consultants, Community 
Policing - Shaping the Future: Developing a Community Profile (Toronto: Ministry of the 
Solicitor General and Correctional Services, 1991). They have been attempted by some 
police services, including the Metropolitan Toronto Police Force and the Ottawa Police. For 
discussion of 1984 survey conducted by the Metro Toronto Police, see Christopher Murphy, 
"Community Problems, Problem Communities and Community Policing in Toronto" in 
Chacko and Nancoo, Community Policing in Canada (note 5). 

For extensive discussion of this issue, see Alan Young, "All Along the Watchtower: 
Arbitrary Detention and the Police Function," (1991) 29 Osgoode Hall Law Journal, 329. 

Ann Brogden and Mike Brogden, "From Henry III to Liverpool 8: The Unity of Police Street 
Powers," International Journal of the Sociology of Law vol. 12 (1984), p. 37; John Alan 
Lee, "Some Structural Aspects of Police Deviance in Relations with Minority Groups," in 
Clifford D. Shearing (ed) Organizational Police Deviance (Toronto: Butterworths, 1981); 
Robert Reiner, "Policing a Postmodern Society," Modern Law Review vol. 55/6 (1992), p. 
761; Michael K. Brown, Working the Street: Police Discretion and the Dilemmas of Reform 
(New York: Russell Sage Foundation, 1988). 

Richard V. Ericson, Reproducing Order: A Study of Police Patrol Work (Toronto: University 
of Toronto Press, 1982), pp. 200-201. 



374 MOVING FORWARD 



33. 



34. 



35. 



36. 



38. 



39. 



40. 



42. 



43. 



44. 



R. V. Ladouceur (1988) 35 C.C.C. (3d) 24 at 259. 

Michael Keith, Race, Riots and Policing: Lore and Disorder in a Multi-Racist Society 
(London, U.K.: UCL Press, 1993), p. 407. 

Allan G. Andrews, "Review of Race Relations Practices of the Metropolitan Toronto Police 
Force" (Toronto: Municipality of Metropolitan Toronto, Audit Department, 1992), especially 
p. 14. 

Ericson, Reproducing Order (note 32); Mike Brogden, Tony Jefferson and Sandra Walklate, 
Introducing Policework (London: Unwin, 1988). 

Ottawa Police, Community-Based Policing in the Nation's Capital (note 4). 

R. V. Simpson (1993) 12 O.R. (3d) 182; R. v. Acciavetti (1993) 80 C.C.C. (3d) 109; R. v. 
Edwards (1994) 91 C.C.C. (3d) 123. ' 

Ontario's trial courts have generally followed the lead of the Ontario Court of Appeal in 
refusing to admit evidence obtained as a result of an officer's hunch. See, for example, R. v. 
Quach (unreported, Nov. 19, 1993); R. v. Yau (unreported, Jan. 7, 1994); R. v. Moore 
(unreported, April 28, 1994); R. v. Alfreida (unreported, June 7, 1994); R. v. Bolick [1993] 
O.J. No. 2824; R. v. Klys [1993] O.J. No. 1597; R. v. Simpson [1993] O.J. No. 2845; R. v. 
Gale (1994) 1 M.V.R. (3d) 257 (Ont. Ct. Gen. Div.); R. v. Jones [1994] O.J. No. 2076; R. v. 
K.G. [1994] O.J. No. 514; R. v. NXT [1994] O.J. No. 2562; R. v. St Denis [1994] O.J. No. 
2403. 

Some trial and appellate judges in other provinces have admitted evidence discovered as a 
result of an officer's hunch, so long as the officer was found to be acting in good faith. 
However, this line of cases appears to have been overruled by the Supreme Court of Canada 
in R. v. Montour [1995] S.C.J, no. 48. 

United Kingdom, Home Office, Code of Practice for the Detention, Treatment and 
Questioning of Persons by Police Officers (London: HMSO, 1985). A recent decision 
suggests that the Ontario Court of Appeal may have arrived at a similar position in R. v. 
Hall, March 3, 1995 [summarized 26 W.C.B. (2nd) 323]. 

Metropolitan Toronto Police, Moving Forward Together (note 15); Allan G. Andrews, 
"Review of Race Relations Practices" (note 35). 



'" Ministry of Education and Training, Violence-Free Schools Policy, June 2, 1994, p. 7. 



R.S.O. 1990, c. T-21. 

Ontario Ministry of the Attorney General, Task Force on the Law Concerning Trespass to 
Publicly-Used Property as It Affects Youth and Minorities, Report, chair, Raj Anand, 
(Toronto: 1987), p. 107. 

Ibid., p. viii. 



Community Policing 375 



'^ A useful review of the recent case law and application of the Trespass to Property Act to 
behaviour by security guards is reviewed in R. v. A. P., Ontario Court of Justice, M. Cohen 
Prov. Div. J., May 30, 1995, unreported (manuscript on file). 

Statistics Canada, Private Policing in Canada/Rapport sur les services de police prives. Cat. 
No. 85-002 Juristat vol. 14, no. 10 (1993); See generally, Clifford D. Shearing and Phillip C. 
Stenning, eds.. Private Policing (California: Sage, 1987); Les Johnston, The Rebirth of 
Private Policing (London: Routledge, 1992). 



Chapter 11 

Systemic Responses to Police 

Shootings 



Perhaps no incidents involving the criminal justice system generate as much public 
outcry, especially in the black community, as police shootings of civilians. In the 
past two decades, the number and circumstances of police shootings in Ontario have 
convinced many black Ontarians that they arc disproportionately vulnerable to police 
violence. They conclude that the police are quicker to use their guns against black 
people and that the shootings are unduly harsh responses to the incidents under 
investigation. The resulting deaths and injuries have also come to represent the 
ultimate manifestation of daily discrimination and harassment that many black 
people experience, especially in interactions with the police. In short, the shootings 
are perceived not as isolated incidents, but as tragedies that affect the entire black 
community - and as a reflection of the destructive force of systemic racism. 

These perceptions have spurred strong opinions about how the criminal justice 
system, and indeed the wider society, should respond to police shootings of black 
and other racialized people. One key demand is that any death or serious injury 
caused by the police be closely scrutinized in an open and fair process designed to 
determine if it was justified. Also crucial is that the search for the truth should 
explicitly examine the contribution, if any, of systemic racism to the death or injury. 

Since 1978, on-duty police officers have shot at least 16 black people in Ontario, ten 
of them fatally. In nine cases, criminal charges were laid against the officers. Not 
one was convicted. 



377 



378 MOVING FORWARD 



Name 


Date of Shooting 


Outcome 


Police Force 


Andrew "Buddy" Evans 


August 9, 1978 


killed 


Metro Toronto 


Albert Johnson 


August 26, 1979 


killed 


Metro Toronto 


Michael Sargeant 


November 20, 1979 


killed 


Metro Toronto 


Leander Savoury 


January 30, 1985 


killed 


Metro Toronto 


Lester Donaldson 


August 9, 1988 


killed 


Metro Toronto 


Earl Edwards 


November 7, 1988 


injured 


Ottawa 


Michael Wade Lawson 


December 8, 1988 


killed 


Peel Region 


Sophia Cook 


October 27, 1989 


injured 


Metro Toronto 


Marlon Neil 


May 4, 1990 


injured 


Metro Toronto 


T. T. (a young offender) 


September 20, 1991 


injured 


Metro Toronto 


Vincent Gardner 


September 26, 1991 


killed 


Nepean 


Royan Bagnaut 


November 3, 1991 


injured 


Metro Toronto 


Jonathan Howell 


November 9, 1991 


injured 


Metro Toronto 


Raymond Lawrence 


May 2, 1992 


killed 


Metro Toronto 


Ian Coley 


April 20, 1993 


killed 


Metro Toronto 


Albert Moses 


September 29, 1994 


killed 


Metro Toronto 



The response of the criminal justice system to these tragic events has been seen as 
reflecting a lack of accountability. Governments have responded to this failure by 
establishing several inquiries and task forces to examine police practices and police 
relations with minority communities. 

The most recent of these was established by the Ontario Government in 1 988, after 
police officers shot three black men in four months. The Task Force on Race 
Relations and Policing found that "visible minority communities do not believe they 
are policed fairly and they made a strong case for their view which cannot be 
ignored."' It recommended changes in the law and procedures governing police use 
of force, as well as reforms to police training to reduce the risk of police shootings. 
The Task Force also proposed creation of an independent agency to investigate 
police shootings and to determine whether charges should be laid. 

Although these proposals were well received by black and other racialized 
Ontarians, many expressed scepticism about whether policing would change and 
about the willingness or capacity of other parts of the criminal justice system to 
address their concerns." Police shootings of black persons under questionable 



Systemic Responses to Police Shootings 379 

circumstances have continued to occur, and members of black and other 
communities have intensified their efforts to secure an effective response from the 
criminal justice system. 

Within a 50-day period in late 1991. four more black Ontarians were shot by police 
officers. The subsequent response of the black community ultimately led to 
establishment of this Commission. As part of our mandate to investigate systemic 
racism in the criminal justice system, the Commission was directed to examine 
"how the criminal justice system should respond to future charges of criminal 
conduct against justice system officials and personnel involving racial minority 
victims." 

The Commission retained Professor Harry Glasbeek' to examine this issue. ^ In this 
chapter we address concerns about the investigation and charges, the criminal trial 
and the coroners' inquests. 

Investigation and charges 

Soon after a shooting by a police officer, the police normally release an explanation 
of what happened to the media. This version of the incident generally presents 
police officers as facing grave danger and acting legally and properly. The victim is 
usually portrayed as engaging in criminal activity, having a criminal record, or 
dangerous. The victim's immigration or refugee status is often stated, which 
implicitly characterizes the victim as "foreign" and a threat to Canadian society. 

The information that the police distribute to the media may be selective. For 
example, in the death of Lee Savoury, Metro Toronto police released the basis for 
their suspicions of Savoury to the media soon after the shooting. The police had 
wire-tap evidence of Savoury's plan to rob a gas bar. They provided details of his 
criminal record and expressed suspicions that he was involved in other robberies and 
possibly a homicide. However, when the media questioned why the police had not 
taken preventive action, a police spokesperson declined further comment because of 
the pending inquest. 

In the case of Raymond Lawrence, Metro Toronto police immediately released to 
the media an account that accorded completely with the eventual testimony given by 
the officers involved in the shooting, even though police investigators had not yet 
interviewed three of the officers. Another officer perpetrated a hoax by telling a 



Professor Glasbeek teaches at Osgoode Hall Law School, York University, in North York and has written 
extensively on evidence law and criminal liability. 

We asked Prof. Glasbeek to review files in possession of the Crown in ten police shooting cases: Evans, Johnson, 
Sargeant, Savoury, Donaldson, Edwards, Lawson, Neil, Gardner and Lawrence. He soon discovered that some files 
prepared prior to 1986 had been destroyed or were otherwise unavailable (Sargeant and Edwards), and that some 
other files were missing relevant data. Thus, his report ultimately dealt with eight cases. It is unfortunate that the 
crown files were not maintained more systematically. Prof Glasbeck's report is available (see Appendix B). 



380 MOVING FORWARD 

journalist that a large knife (in his possession from another investigation) was the 
icnife that Lawrence had brandished at the police officer who killed him. This story 
was widely and quickly circulated, and probably never was dispelled from the minds 
of many members of the public. 

These examples show how the police can fall far below the standard of objectivity 
that might be expected of them by manipulating public perception through their 
control of information. Some members of the media, by uncritical reporting of 
selective information provided by the police, are in effect colluding with the police 
in moulding public perception. One result is the reinforcement of stereotypes about 
black people. 

Such uncritical reporting in the wake of these shootings may prompt members of 
black communities to publicly protest and allege racism by the police. The media, in 
effect, provoke a public debate between the police and those communities. From a 
community perspective, the police should be focusing on getting an independent 
investigation done as quickly as possible. Instead, this powerful agency of the state 
is seen to be "bashing" immigrants and engaging in racial stereotyping, with the 
eager participation of some members of the media. This pattern casts doubt on the 
system's ability to scrutinize police conduct objectively and to address community 
concerns that police engage in racist violence. 

The investigation of deaths and injuries caused by police officers also poses 
practical problems that concern m